[Federal Register Volume 67, Number 89 (Wednesday, May 8, 2002)]
[Proposed Rules]
[Pages 31098-31099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11476]



[[Page 31097]]

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Part V





Department of Education





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34 CFR Part 106



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

  Federal Register / Vol. 67, No. 89 / Wednesday, May 8, 2002 / 
Proposed Rules  

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DEPARTMENT OF EDUCATION

34 CFR Part 106

RIN 1870-AA11


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

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Notice of intent to regulate.

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SUMMARY: The Secretary provides notice that the Secretary intends to 
propose amendments to the regulations implementing Title IX of the 
Education Amendments of 1972 to provide more flexibility for educators 
to establish single-sex classes and schools at the elementary and 
secondary levels. The purpose of the amendments would be to support 
efforts of school districts to improve educational outcomes for 
children and to provide public school parents with a diverse array of 
educational options that respond to the educational needs of their 
children, while at the same time ensuring appropriate safeguards 
against discrimination. We want to permit appropriate latitude for 
innovative efforts to help children learn and to expand the choices 
parents have for their children's education consistent with the 
purposes of the Title IX statute and the Constitution. We are issuing a 
notice of intent to regulate (NOIR) to ensure adequate public input 
regarding these important and sensitive issues.

DATES: We must receive your comments on or before July 8, 2002.

ADDRESSES: Address all comments about our intent to regulate to Gerald 
A. Reynolds, Assistant Secretary for Civil Rights, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 5000, Mary E. Switzer 
Building, Washington, DC 20202-1100. For all comments submitted by 
letter, you should include the term ``Single-sex Notice of Intent 
Comments.''
    If you prefer to send your comments through the Internet, use the 
following address: [email protected].
    You should include the term ``Single-sex Notice of Intent 
Comments'' in the subject line of your electronic message.

FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, Office for Civil 
Rights, U.S. Department of Education, 400 Maryland Avenue, SW., room 
5036, Mary E. Switzer Building, Washington, DC 20202-1100. Telephone: 
(202) 205-8635 or 1-800-421-3481.
    If you use a telecommunications device for the deaf (TDD), you may 
call 1-877-521-2172. For additional copies of this document, you may 
call OCR's Customer Service Team at (202) 205-5413 or 1-800-421-3481. 
The notice of intent will also be available at OCR's site on the 
Internet at: www.ed.gov/ocr.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Background

    Title IX of the Education Amendments of 1972 (Title IX) prohibits 
discrimination on the basis of sex in education programs and activities 
that receive Federal financial assistance. 20 U.S.C. 1681(a). Title IX 
is implemented through regulations by agencies providing Federal 
assistance to education programs and activities. 20 U.S.C. 1682. Our 
current Title IX regulations were issued by our predecessor agency, the 
Department of Health, Education, and Welfare (HEW), and became 
effective July 21, 1975.\1\ The statute and implementing regulations 
contain specific provisions regarding single-sex classes, programs, and 
activities (classes) and single-sex schools. These existing 
requirements are discussed in detail in a separate document published 
elsewhere in this issue of the Federal Register, entitled ``Guidelines 
on current title IX requirements related to single-sex classes and 
schools.'' The No Child Left Behind Act of 2001, which reauthorized the 
Elementary and Secondary Education Act of 1965, requires the Secretary 
to issue these guidelines not less than 120 days from the date of 
enactment.
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    \1\ The HEW regulations were the result of an extensive public 
comment process and congressional review. HEW received and 
considered more than 9700 comments before issuing the final 
regulations. After the final regulations were issued, but before 
they became effective, Congress held 6 days of hearings to examine 
whether the regulations were consistent with the statute. See Sex 
Discrimination Regulations: Hearings before the Subcomm. on 
Postsecondary Education of the House Comm. on Education and Labor, 
94th Cong., 1st Sess. (1975) (``Regulations Review Hearings'').
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    The legal and educational issues surrounding single-sex classes and 
schools are complex and sensitive and require consultations with other 
Federal agencies, including the Department of Justice, as well as input 
from parents, community leaders, school districts, and interested 
individuals and organizations. This NOIR is intended to begin the 
process of public input on these important issues.
    The use of single-sex classes and schools can reflect important and 
legitimate efforts to improve educational outcomes for all students. 
Rather than being motivated by outdated notions regarding the 
limitations or limited goals of members of one sex, some of these 
efforts aim to provide new and better ways to help all students learn 
and meet high standards. We expect that any proposal to amend or 
clarify the Title IX regulations would apply only to nonvocational 
elementary and secondary schools and classes. This is where the need 
for flexibility to respond to students' diverse educational needs is 
most prevalent.

Invitation To Comment

    Single-sex classes: We want to permit appropriate latitude for 
schools to implement innovative efforts to help children learn and to 
expand the choices parents have for their children's education 
consistent with the Title IX statute and the Constitution.\2\ We 
recognize that to promote excellence and innovation, consistent with 
the purposes of the No Child Left Behind Act of 2001, it is important 
that parents have an opportunity to choose an educational program that 
best fits the needs of their children and that educators have an array 
of educational options to meet the diverse needs of this nation's 
students. We are also mindful of congressional concerns--at the time of 
Title IX's enactment--that some coeducational institutions used sex-
based policies and practices that reflected outdated and stereotyped 
notions of the differences between the sexes and of the limited 
abilities of girls and women. See e.g., 118 Cong. Rec. 5804-08. In 
developing a regulatory proposal, we will ensure that educational 
opportunities are not limited to students based on sex and that single-
sex classes are not based on sex-role stereotypes.
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    \2\ The Supreme Court has decided two significant constitutional 
cases specifically regarding single-sex education. United States v. 
Virginia, 518 U.S. 515 (1996) (State-sponsored, male-only military 
college violated Equal Protection Clause); Mississippi University 
for Women v. Hogan, 458 U.S. 718 (1982) (State-sponsored, female-
only nursing school violated the Equal Protection Clause.)
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    We invite comments on whether, and under what circumstances, 
schools should be permitted to offer single-sex classes under the Title 
IX regulations. The Secretary specifically invites advice and 
recommendations from States and local administrators, parents, 
teachers, community leaders, paraprofessionals,

[[Page 31099]]

members of local boards of education, charter school operators and 
public chartering agencies, civil rights groups, and education 
organizations. We are particularly interested in comments on the 
criteria that should be used by schools and the Department in 
determining the sufficiency of educational justifications for single-
sex classes and in examples of educational justifications that would 
meet the proposed criteria. The following are some questions intended 
to guide your comments:
    (1) Should a school district have to explain the benefits of 
single-sex classes for its students? If so, what kinds of explanations 
would be adequate? To what extent should these explanations be 
supported by scientifically based research, assessments of the needs of 
local students, or other reliable evidence?
    (2) Assuming that a school district provides a single-sex class to 
students of one sex, would it be possible for a coeducational class to 
provide equal opportunity for students of the other sex? If so, under 
what circumstances?
    (3) If it is not possible for a coeducational class to provide 
equal opportunity for students of the other sex, and a single sex class 
would be required, what happens if there is little interest in a 
single-sex class among students of one sex?
    (4) Must student assignments to single-sex classes always be 
voluntary? If not, when are mandatory assignments permissible?
    (5) Are there any classes that should not be permitted to be 
single-sex? For example, at the time that Title IX was enacted, 
Congress was particularly concerned about discrimination in single-sex 
vocational education classes and sex-segregated physical education 
classes (although students could be separated by sex in physical 
education classes involving contact sports.)
    Single-sex schools: Because of the statutory exemption for single-
sex admissions policies of single-sex elementary and secondary schools, 
which is reflected in the Title IX regulations, a school district does 
not need to provide the Department with a justification for offering a 
single-sex school. There is already flexibility in the regulations for 
allowing school districts to offer single-sex nonvocational schools as 
long as certain conditions are met. (See the ``Guidelines on current 
title IX requirements related to single-sex classes and schools'' for a 
more complete discussion regarding the need for certain regulations in 
this area.) However, we are interested in receiving comments on the 
following issues:
    (1) If a school district provides a single-sex school to students 
of one sex, would it be possible for a coeducational school to provide 
equal opportunity for students of the other sex? If so, under what 
circumstances?
    (2) Are there special considerations with regard to single-sex 
charter schools or magnet schools? Should a school district, State, or 
chartering agency be required to offer a school for students of the 
other sex? If so, under what circumstances?
    (3) Given the Supreme Court's decision in United States v. 
Virginia, 518 U.S. 515 (1996), should a school district that 
establishes single-sex schools or classes for one sex be required to 
establish schools or classes for the other sex that are ``comparable'' 
or that meet some other standard?

    (Note: With this question, we seek input regarding classes as 
well as schools.)

    During and after the comment period, you may inspect all public 
comments received in response to this notice in room 5036, Mary E. 
Switzer Building, 330 C Street, SW., Washington, DC, between the hours 
of 9:30 a.m. and 5 p.m., Eastern time, Monday through Friday of each 
week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for this NOIR. If you want to schedule an appointment 
for this type of aid, please contact the person listed under FOR 
FURTHER INFORMATION CONTACT.

Electronic Access to This Document

    You may review this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document (PDF) on the Internet at the following site: 
www.ed.gov/legislation/FedRegister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: www.access.gpo.gov/nara/index.html.

    After we review comments on this notice, we will publish a proposed 
amendment to the Title IX regulations for public comment.

    Authority: 20 U.S.C. 1681, 1682.

    Dated: May 3, 2002.
Rod Paige,
Secretary of Education.
[FR Doc. 02-11476 Filed 5-7-02; 8:45 am]
BILLING CODE 4000-01-P