[Federal Register Volume 68, Number 44 (Thursday, March 6, 2003)]
[Rules and Regulations]
[Pages 10892-10902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5143]



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Part IV





Department of Homeland Security





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Office of the Secretary



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6 CFR Part 17



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

  Federal Register / Vol. 68, No. 44 / Thursday, March 6, 2003 / Rules 
and Regulations  

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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 17

RIN 1601-AA04


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

AGENCY: Office of the Secretary, Homeland Security.

ACTION: Interim final rule.

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SUMMARY: This interim final rule establishes for the Department of 
Homeland Security the necessary procedures for effectuating Title IX of 
the Education Amendments of 1972, as amended (except sections 904 and 
906 of those Amendments), 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.

DATES: These interim final rules are effective on March 6, 2003.
    Written comments may be submitted to the Department of Homeland 
Security on or before April 7, 2003.

ADDRESSES: Submit written comments (preferably an original and three 
copies) to Associate General Counsel (General Law), Department of 
Homeland Security, Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Robert Coyle, (202) 282-8410, not a 
toll free call.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002 (Pub. L. 107-296), which created the new 
Department of Homeland Security (DHS). Pursuant to the provisions of 
the Act, the new Department came into existence on January 24, 2003.
    In order to establish procedures to facilitate the operations of 
the new Department, DHS is issuing an initial series of proposed and 
interim final regulations.

II. The Interim Final Rule

    This interim final rule provides those procedures necessary to 
effectuate Title IX of the Education Amendments of 1972, as amended 
(except sections 904 and 906 of those Amendments) (20 U.S.C. 1681-1683 
and 1685-1688), 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.

III. Procedural Requirements

    Because the DHS came into existence on January 24, 2003, it is 
necessary to promptly establish procedures to facilitate the operations 
of the new Department. Furthermore, this interim final rule parallels 
the existing operational regulations of other cabinet-level agencies to 
effectuate the provisions of Title IX (see 65 FR 52858, the final 
common rule for Title IX for numerous agencies). Similar regulations 
were applicable to components being transferred to DHS from other 
agencies, and the regulations are only being technically adapted for 
DHS, imposing no substantive requirement that is different from the 
existing regulations of other agencies. Accordingly, the Department has 
determined that notice and public procedure are impracticable and 
contrary to the public interest pursuant to 5 U.S.C. 553(b)(B). For the 
same reasons, the Department has determined that this interim rule 
should be issued without a delayed effective date pursuant to 5 U.S.C. 
553(d)(3).
    It has been determined that this rulemaking is not a significant 
regulatory action for the purposes of Executive Order 12866. 
Accordingly, a regulatory impact analysis is not required.
    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do 
not apply.
    This regulation has been reviewed and approved by the Attorney 
General pursuant to Executive Order 12250 and reviewed by the Equal 
Employment Opportunity Commission pursuant to Executive Order 12067.

List of Subjects in 6 CFR Part 17

    Civil rights, Education, Equal employment opportunity, Sex 
discrimination.

Authority and Issuance

    For the reasons set forth above, chapter I of 6 CFR is amended by 
adding part 17 to read as follows:

PART 17--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

Subpart A--Introduction
Sec.
17.100 Purpose and effective date.
17.105 Definitions.
17.110 Remedial and affirmative action and self-evaluation.
17.115 Assurance required.
17.120 Transfers of property.
17.125 Effect of other requirements.
17.130 Effect of employment opportunities.
17.135 Designation of responsible employee and adoption of grievance 
procedures.
17.140 Dissemination of policy.
Subpart B--Coverage
17.200 Application.
17.205 Educational institutions and other entities controlled by 
religious organizations.
17.210 Military and merchant marine educational institutions.
17.215 Membership practices of certain organizations.
17.220 Admissions.
17.225 Educational institutions eligible to submit transition plans.
17.230 Transition plans.
17.235 Statutory amendments.
Subpart C--Discrimination on the Basis of Sex in Admission and 
Recruitment Prohibited
17.300 Admission.
17.305 Preference in admission.
17.310 Recruitment.
Subpart D--Discrimination on the Basis of Sex in Education Programs or 
Activities Prohibited
17.400 Education programs or activities.
17.405 Housing.
17.410 Comparable facilities.
17.415 Access to course offerings.
17.420 Access to schools operated by LEAs.
17.425 Counseling and use of appraisal and counseling materials.
17.430 Financial assistance.
17.435 Employment assistance to students.
17.440 Health and insurance benefits and services.
17.445 Marital or parental status.
17.450 Athletics.
17.455 Textbooks and curricular material.
Subpart E--Discrimination on the Basis of Sex in Employment in 
Education Programs or Activities Prohibited
17.500 Employment.
17.505 Employment criteria.
17.510 Recruitment.
17.515 Compensation.
17.520 Job classification and structure.
17.525 Fringe benefits.
17.530 Marital or parental status.
17.535 Effect of state or local law or other requirements.
17.540 Advertising.
17.545 Pre-employment inquiries.
17.550 Sex as a bona fide occupational qualification.

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Subpart F--Procedures
17.600 Notice of covered programs.
17.605 Enforcement procedures.
17.635 Forms and instructions; coordination.

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); 
5 U.S.C. 301; 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

Subpart A--Introduction

    Sec.  17.100 Purpose and effective date. (a) 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 
shall be March 6, 2003.
    (b) The provisions established by this part shall be effective for 
all components of the Department, including all Department components 
that are transferred to the Department, except to the extent that a 
Department component already has existing Title IX regulations.


Sec.  17.105  Definitions.

    As used in these Title IX regulations, the term:
    (a) 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.
    (b) 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.
    (c) Applicant means one who submits an application, request, or 
plan required to be approved by an official of the Federal agency that 
awards Federal financial assistance, or by a recipient, as a condition 
to becoming a recipient.
    (d) Department means Department of Homeland Security.
    (e) Designated agency official means the Officer for Civil Rights 
and Civil Liberties, or the designee thereof.
    (f) 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.
    (g) 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.
    (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.
    (h) 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.
    (i) 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.
    (j) 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;
    (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.
    (k) 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 semi-skilled 
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.
    (l) 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.
    (m) Reviewing authority means that component of the Department 
delegated authority to review the decisions of hearing officers in 
cases arising under these Title IX regulations.
    (n) Secretary means Secretary of the Department of Homeland 
Security.
    (o) Student means a person who has gained admission.
    (p) 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

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section 3 of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 
1682, 1683, 1685, 1686, 1687, 1688).
    (q) Title IX regulations means the provisions of this part.
    (r) Transition plan means a plan subject to the approval of the 
Secretary of Education pursuant to section 901(a)(2) of the 
EducationAmendments 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.  17.110  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 March 6, 2003:
    (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.  17.115  Assurance required.

    (a) General. Either at the application stage or the award stage, 
Federal agencies 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 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.  
17.110(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.  17.120  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 Sec. Sec.  17.205 through 17.235(a).


Sec.  17.125  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

[[Page 10895]]

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.  17.130  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.  17.135  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 carry out 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.  17.140  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 Sec. Sec.  17.300 through 17.310 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.  17.135, 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 March 6, 2003 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 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.  17.200  Application.

    Except as provided in Sec. Sec.  17.205 through 17.235(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.  17.205  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.  17.210  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.  17.215  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 1986 (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.  17.220  Admissions.

    (a) General. Admissions to educational institutions prior to June 
24, 1973, are not covered by these Title IX regulations.

[[Page 10896]]

    (b) Administratively separate units. For the purposes only of this 
section, Sec. Sec.  17.225, 17.230, and 17.300 through 17.310, each 
administratively separate unit shall be deemed to be an educational 
institution.
    (c) Application of Sec. Sec.  17.300 through 17.310. Except as 
provided in paragraphs (d) and (e) of this section, Sec. Sec.  17.300 
through 17.310 apply to each recipient. A recipient to which Sec. Sec.  
17.300 through 17.310 apply shall not discriminate on the basis of sex 
in admission or recruitment in violation of Sec. Sec.  17.300 through 
17.310.
    (d) Educational institutions. Except as provided in paragraph (e) 
of this section as to recipients that are educational institutions, 
Sec. Sec.  17.300 through 17.310 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. Sections 
17.300 through 17.310 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.  17.225  Educational institutions eligible to submit transition 
plans.

    (a) Application. This section applies to each educational 
institution to which Sec. Sec.  17.300 through 17.310 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 Sec. Sec.  17.300 through 
17.310.


Sec.  17.230  Transition plans.

    (a) Submission of plans. An institution to which Sec.  17.225 
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.
    (c) Nondiscrimination. No policy or practice of a recipient to 
which Sec.  17.225 applies shall result in treatment of applicants to 
or students of such recipient in violation of Sec. Sec.  17.300 through 
17.310 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.  17.225 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.  17.235  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) For purposes of these Title IX regulations, 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 postsecondary institution, 
or a public system of higher education; or
    (B) A local educational agency (as defined in 20 U.S.C. 8801), 
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

[[Page 10897]]

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 postsecondary 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.  17.300  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 Sec. Sec.  17.300 through 17.310 apply, except as 
provided in Sec. Sec.  17.225 and 17.230.
    (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 Sec. Sec.  17.300 through 17.310 
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 a person satisfies any policy or criterion for 
admission, or in making any offer of admission, a recipient to which 
Sec. Sec.  17.300 through 17.310 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.  17.235(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.  17.305  Preference in admission.

    A recipient to which Sec. Sec.  17.300 through 17.310 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 Sec. Sec.  17.300 through 17.310.


Sec.  17.310  Recruitment.

    (a) Nondiscriminatory recruitment. A recipient to which Sec. Sec.  
17.300 through 17.310 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.  17.110(a), and may choose to 
undertake such efforts as affirmative action pursuant to Sec.  
17.110(b).
    (b) Recruitment at certain institutions. A recipient to which 
Sec. Sec.  17.300 through 17.310 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 Sec. Sec.  17.300 through 17.310.

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


Sec.  17.400  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 
17.400 through 17.455 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 Sec. Sec.  17.300 through 17.310 do 
not apply, or an entity, not a recipient, to which Sec. Sec.  17.300 
through 17.310 would not apply if the entity were a recipient.
    (b) Specific prohibitions. Except as provided in Sec. Sec.  17.400 
through 17.455, 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;

[[Page 10898]]

    (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; or
    (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.  17.405  Housing.

    (a) General. 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 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.  17.410  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.  17.415  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 physical education classes and activities 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 March 6, 2003. 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 March 6, 2003.
    (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.  17.420  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.  17.425  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.

[[Page 10899]]

    (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.  17.430  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 
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.  17.450.


Sec.  17.435  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 
Sec. Sec.  17.500 through 17.550.


Sec.  17.440  Health and insurance benefits and services.

    Subject to Sec.  17.235(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 Sec. Sec.  17.500 through 17.550 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.  17.445  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.  17.235(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

[[Page 10900]]

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.  17.450  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; and
    (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 
March 6, 2003. A recipient that operates or sponsors interscholastic, 
intercollegiate, club, or intramural athletics at the secondary or 
postsecondary school level shall comply fully with this section as 
expeditiously as possible but in no event later than three years from 
March 6, 2003.


Sec.  17.455  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.  17.500  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 therefore, 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 Sec. Sec.  17.500 
through 17.550, 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. Sections 17.500 through 17.550 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.  17.505  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

[[Page 10901]]

disproportionately adverse effect, are shown to be unavailable.


Sec.  17.510  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 Sec. Sec.  17.500 
through 17.550.


Sec.  17.515  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.  17.520  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.  17.550.


Sec.  17.525  Fringe benefits.

    (a) ``Fringe benefits'' defined. For purposes of these Title IX 
regulations, the term 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 provisions of Sec.  17.515.
    (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.  17.530  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 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.  
17.235(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.  17.535  Effect of state or local law or other requirements.

    (a) Prohibitory requirements. The obligation to comply with 
Sec. Sec.  17.500 through 17.550 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.  17.540  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.  17.545  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.  17.550  Sex as a bona fide occupational qualification.

    A recipient may take action otherwise prohibited by Sec. Sec.  
17.500 through 17.550 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

[[Page 10902]]

facility used only by members of one sex.

Subpart F--Procedures


Sec.  17.600  Notice of covered programs.

    Within 60 days of March 6, 2003, each component of the Department 
that awards Federal financial assistance shall publish in the Federal 
Register a notice of the programs covered by these Title IX 
regulations. Each such component shall periodically republish the 
notice of covered programs to reflect changes in covered programs. 
Copies of this notice also shall be made available upon request to the 
Department's office that enforces Title IX.


Sec.  17.605  Enforcement procedures.

    The investigative, compliance, and enforcement procedural 
provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 
2000d) (``Title VI'') are hereby adopted and applied to these Title IX 
regulations. These procedures may be found at 6 CFR part 21.


Sec.  17.635  Forms and instructions; coordination.

    (a) Forms and instructions. The designated agency official shall 
issue and promptly make available to interested persons forms and 
detailed instructions and procedures for effectuating these Title IX 
regulations.
    (b) Supervision and coordination. The designated agency official 
may from time to time assign to officials of the Department, or to 
officials of other departments or agencies of the Government with the 
consent of such departments or agencies, responsibilities in connection 
with the effectuation of the purposes of Title IX and these Title IX 
regulations (other than responsibility for review as provided in Sec.  
17.625(e)), including the achievements of effective coordination and 
maximum uniformity within the Department and within the Executive 
Branch of the Government in the application of Title IX and these Title 
IX regulations to similar programs and in similar situations. Any 
action taken, determination made, or requirement imposed by an official 
of another department or agency acting pursuant to an assignment of 
responsibility under this section shall have the same effect as though 
such action had been taken by the designated official of this 
Department.

    Dated: February 28, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-5143 Filed 3-5-03; 8:45 am]
BILLING CODE 4410-10-P