[Federal Register Volume 69, Number 46 (Tuesday, March 9, 2004)]
[Proposed Rules]
[Pages 11276-11285]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5156]



[[Page 11275]]

-----------------------------------------------------------------------

Part VII





Department of Education





-----------------------------------------------------------------------



34 CFR Part 106



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

  Federal Register / Vol. 69, No. 46 / Tuesday, March 9, 2004 / 
Proposed Rules  

[[Page 11276]]


-----------------------------------------------------------------------

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 proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Secretary proposes to amend the regulations implementing 
Title IX of the Education Amendments of 1972 (Title IX), which 
prohibits sex discrimination in federally assisted education programs. 
These proposed amendments would clarify and modify Title IX regulatory 
requirements pertaining to the provision of single-sex schools and 
classes \1\ in elementary and secondary schools. The proposed 
amendments would expand flexibility for recipients that may be 
interested in providing single-sex schools or classes, and they would 
explain how single-sex schools or classes may be provided consistent 
with the requirements of Title IX.
---------------------------------------------------------------------------

    \1\ The current regulations use the terms ``class,'' ``course,'' 
``course offering'', and ``extracurricular activity.'' For the sake 
of simplicity, we solely use the term ``class'' in this preamble.

---------------------------------------------------------------------------
DATES: We must receive your comments on or before April 23, 2004.

ADDRESSES: Address all comments about our proposed regulations to 
Kenneth L. Marcus, U.S. Department of Education, 400 Maryland Avenue, 
SW., room 5000, Mary E. Switzer Building, Washington, DC 20202-1100. If 
you prefer to send your comments through the Internet, you may address 
them to us at the U.S. Government Web site: www.regulations.gov.
    Or you may send your Internet comments to us at the following 
address: [email protected].
    For all comments submitted, you should specify the subject as 
``Single-Sex Proposed Regulations Comments.''

FOR FURTHER INFORMATION CONTACT: Sandra G. Battle, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 5036, Mary E. Switzer 
Building, Washington, DC 20202-1100. Telephone: (202) 205-5526.
    If you use a telecommunications device for the deaf (TDD), you may 
call 1-877-521-2172. For additional copies of this document, you may 
call the Customer Service Team for the Office for Civil Rights (OCR) at 
(202) 205-5413 or 1-800-421-3481. This notice of proposed rulemaking 
will also be available at OCR's Web 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:

Invitation to Comment

    We invite you to submit comments regarding these proposed 
regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 5036, 330 C Street, 
SW., Washington, DC 20202-6132, between the hours of 9:30 a.m. and 4 
p.m., Eastern time, Monday through Friday 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 comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the person 
listed under FOR FURTHER INFORMATION CONTACT. (If you use a TDD, you 
may call 1-877-521-2172.)

Overview

    Title IX prohibits discrimination on the basis of sex in education 
programs and activities that receive Federal financial assistance.\2\ 
The statute and existing regulations contain specific provisions 
regarding single-sex classes, schools, and extracurricular activities.
---------------------------------------------------------------------------

    \2\ 20 U.S.C. 1681(a).
---------------------------------------------------------------------------

    After almost 30 years of progress under Title IX and our 
regulations, we have reexamined our regulatory provisions applicable to 
single-sex elementary and secondary education. For the reasons 
described in this preamble, we are proposing amendments to our 
regulations that would provide additional flexibility in permitting 
single-sex schools and classes at the elementary and secondary 
education levels consistent with the requirements of Title IX. The 
proposed regulations would provide the framework for determining under 
what circumstances single-sex schools and classes may be provided in 
elementary and secondary education and for ensuring that, when they are 
provided, they are provided in a manner that ensures nondiscrimination 
on the basis of sex consistent with recipients' Title IX obligations.
    When Title IX was enacted in 1972 and when the current regulations 
were issued in 1975, discrimination against female students was 
widespread at all levels of education, including elementary and 
secondary education. Since then, the educational opportunities for 
young women and girls, and the commitment of educators to those 
opportunities, have increased.
    Thus, at the time that the current regulations were issued, it was 
not unreasonable to base the regulations on a presumption that, if 
recipients were permitted to provide single-sex classes beyond the most 
limited of circumstances, discriminatory practices would likely 
continue.
    Over the past 30 years, the situation has changed dramatically. 
While there are still more gains to be made, schools are now far more 
equitable in their treatment of female students. Those changes are due 
in no small measure to Title IX and our regulations. In the meantime, 
educational research has suggested that in certain circumstances, 
single-sex education provides educational benefits for some 
students.\3\ Therefore, we have determined that

[[Page 11277]]

amendments permitting additional flexibility in providing single-sex 
educational options, while incorporating appropriate safeguards, are 
appropriate. When the current regulations were issued, it may have been 
appropriate to provide limited flexibility for single-sex educational 
opportunities, as discriminatory practices were still prevalent. 
However, given the current environment, we believe that additional 
flexibility is warranted, and that this flexibility will not compromise 
equal educational opportunities for male and female students. In fact, 
these amendments will help provide educational benefits to some 
students.
---------------------------------------------------------------------------

    \3\ See, e.g., U.S. Department of Education, Office of 
Educational Research and Improvement, Single-Sex Schooling: 
Perspectives From Practice and Research (1993) (stating that ``[t]he 
research synthesis produced for this conference and the summary of 
the conference proceedings suggest that single-sex education 
provides educational benefits for some students''). We recognize 
that there is presently a debate among researchers and educators 
regarding the effectiveness of single-sex education. Compare 
Cornelius Riordan, What Do We Know About the Effects of Single-Sex 
Schools in the Private Sector?: Implications for Public Schools, in 
Gender in Policy and Practice: Perspectives on Single-Sex and 
Coeducational Schooling, 10, 13-22, 24-28 (Amanda Datnow & Lea 
Hubbard eds., 2002) (stating that ``[s]ingle-sex schools remain an 
effective form of school organization for disadvantaged students''); 
Herbert W. Marsh, Effects of Attending Single-Sex and Coeducational 
High Schools on Achievement, Attitudes, and Sex Differences, Journal 
of Educational Psychology, 1989, Vol. 81, No. 1, 70, 80 (finding in 
study of Catholic schools that when outcomes for seniors were 
controlled for background characteristics in their sophomore year 
``almost no school-type effects were statistically significant* * * 
[and] there was no tendency favoring students from single-sex or 
coed schools''). See also American Association of University Women, 
Separated by Sex: A Critical Look at Single-Sex Education for Girls 
2 (1998) (stating ``[t]here is no evidence that single-sex education 
in general `works' or is `better' than coeducation'' but also 
stating that ``[s]ingle-sex educational programs produce positive 
results for some students in some settings'').
---------------------------------------------------------------------------

    These proposed amendments reflect our analysis of the Title IX 
statute, its legislative history, and the current regulations, as well 
as relevant case law under Title IX.\4\ The proposed amendments 
describe standards that, if adopted, would be used by the Office for 
Civil Rights of the U.S. Department of Education (Department) in making 
determinations about whether recipients' single-sex schools and classes 
are consistent with our Title IX regulations for the purposes of 
continued receipt of Federal financial assistance.\5\ OCR would make 
these determinations in resolving any complaints related to these 
issues.\6\ The proposed amendments do not require single-sex schools or 
classes but provide additional flexibility to offer them, and they 
require that recipients continue to ensure that their policies and 
practices do not result in discrimination on the basis of sex. 
Recipients that chose to operate single-sex schools or classes would be 
required to comply with our final regulations, but we are not proposing 
to require recipients to apply to OCR for approval of a proposed 
single-sex school or class. OCR will provide technical assistance to 
recipients, upon request, when the Department approves final 
regulations.
---------------------------------------------------------------------------

    \4\ Because the requirements of the Equal Protection Clause of 
the 14th Amendment to the U.S. Constitution also protect the rights 
of public school students who may be subject to sex-based 
classifications, in developing the proposed amendments, we have also 
considered Supreme Court decisions involving constitutional 
challenges to single-sex education. The Supreme Court has issued no 
opinions regarding single-sex programs in elementary and secondary 
school education. Soon after the original Title IX regulations were 
adopted in 1975, the Court, by an evenly divided vote and without an 
opinion, let stand a decision of the Third Circuit Court of Appeals 
allowing, under the Equal Protection Clause, a school district that 
also operated coeducational high schools to have two comparable 
single-sex high schools. Vorchheimer v. School District of 
Philadelphia, 532 F.2d 880 (3d Cir. 1976), affirmed by an equally 
divided Court, 430 U.S. 703 (1977) (per curiam). We also considered 
the Court's decisions in two more recent constitutional challenges 
in the context of single-sex postsecondary education, United States 
v. Virginia (Virginia), 518 U.S. 515 (1996), and Mississippi 
University for Women v. Hogan (Hogan), 458 U.S. 718 (1982).
    \5\ In addition, recipients that are public entities, such as 
public school districts, are subject to the sex discrimination 
prohibitions of the Equal Protection Clause of the 14th Amendment to 
the U.S. Constitution. Public elementary and secondary schools are 
also subject to the requirements of the Equal Educational 
Opportunities Act of 1974 (EEOA), 20 U.S.C. 1701-1721, which, among 
other things, contains prohibitions against the involuntary 
assignment of students to schools on the basis of sex. 20 U.S.C. 
1703(c), 1705, and 1720(c). Public school and private school 
recipients may also be subject to State or local laws prohibiting 
single-sex classes or schools. Recipients may wish to consult legal 
counsel regarding how these additional legal authorities may affect 
any particular single-sex schools or classes they propose to offer.
    \6\ Similarly, OCR would make these determinations if OCR were 
to initiate a compliance review on these issues. See 34 CFR 100.7, 
made applicable to Title IX by 34 CFR 106.71.
---------------------------------------------------------------------------

    Pursuant to a provision of the No Child Left Behind Act of 2001,\7\ 
on May 8, 2002, the Department published guidelines on the existing 
regulatory requirements in a document entitled ``Guidelines on current 
Title IX requirements related to single-sex classes and schools'' 
(Guidelines).\8\ Simultaneously, we published a notice of intent to 
regulate (NOIR), indicating that the Secretary intends to propose 
amendments to our Title IX regulations in order to provide more 
flexibility to educators to establish single-sex schools and classes at 
the elementary and secondary levels and to provide additional public 
educational choices to parents.\9\ The purpose of the NOIR was to begin 
the process of obtaining early input from the public on this issue 
prior to amending the regulations.
---------------------------------------------------------------------------

    \7\ On January 8, 2002, the President signed into law the No 
Child Left Behind Act of 2001 (``No Child Left Behind'' or 
``NCLB''), which reauthorized the Elementary and Secondary Education 
Act of 1965 (ESEA). Section 5131(c) of the ESEA required the 
Department to issue guidelines for local educational agencies (LEAs) 
regarding the applicable law on single-sex classes and schools 
within 120 days of the enactment of NCLB. Section 5131(a) of the 
ESEA describes permissible uses for Innovative Assistance Programs 
funds, and the guidelines were required because section 5131(a)(23) 
permits ``programs to provide same-gender schools and classrooms 
(consistent with applicable law).''
    \8\ 67 FR 31102-03 (2002).
    \9\ 67 FR 31098-99 (2002).
---------------------------------------------------------------------------

    In response to this invitation we received approximately 170 
comments. We are pleased with this response and the public interest 
expressed regarding this issue. We have found that the comments 
fulfilled the aim of the NOIR to focus public attention and comment on 
key issues. In summary, the comments reflected a spectrum of opinion, 
ranging from enthusiastic support for amending the regulations to 
permit recipients more flexibility in providing single-sex schools and 
classes to opposition against any additional flexibility. In preparing 
these proposed regulations, we considered comments on both the critical 
issues raised in the NOIR and on other issues raised by commenters.

Application

    In summary, and unless otherwise noted, the proposed amendments for 
classes and schools would apply to elementary and secondary education 
and to both public or private \10\ recipients. The proposed amendments 
exempt certain charter schools from certain proposed requirements 
related to single-sex schools. Furthermore, under the proposed 
amendments public and private recipients would be prohibited from 
operating single-sex elementary and secondary vocational institutions 
and from offering single-sex vocational education classes in 
coeducational elementary and secondary schools.
---------------------------------------------------------------------------

    \10\ Private elementary and secondary schools are subject to the 
proposed requirements pertaining to classes if they receive a grant 
or subgrant of Federal funds from the Department. Private schools 
with students who participate in programs conducted by LEAs that are 
funded under Federal programs such as Title I of the Elementary and 
Secondary Education Act or the Individuals with Disabilities 
Education Act are not considered recipients of Federal funds unless 
they otherwise receive a grant or subgrant of Federal funds. Such 
private schools are not subject to these regulations, but the LEA 
must ensure that its programs, including services to private school 
students, are consistent with Title IX. Also, the proposed 
amendments pertaining to single-sex schools do not apply to 
recipients that operate private, nonvocational elementary or 
secondary schools.
---------------------------------------------------------------------------

    We discuss the substantive issues under the sections of the 
proposed amendments to which they pertain. We discuss our proposed non-
substantive changes in the technical amendments section at the end of 
the preamble.

Current Requirements and Proposed Substantive Changes for Single-Sex 
Classes

Current Regulations (34 CFR 106.34) Generally Prohibit Single-Sex 
Classes

    There are limited exceptions to the general prohibition on single-
sex classes and activities in the current regulations in 34 CFR 
106.34.\11\ For coeducational

[[Page 11278]]

elementary and secondary schools, the existing regulations in 34 CFR 
106.34 prohibit recipients from conducting single-sex classes or 
activities or requiring or refusing participation in classes or 
activities on the basis of sex.
---------------------------------------------------------------------------

    \11\ These exceptions allow (1) single-sex groupings within 
physical education classes that result from the application of 
objective standards of physical ability, 34 CFR 106.34(b); (2) 
separation of students by sex in physical education classes during 
participation in contact sports, 34 CFR 106.34(c); (3) separation of 
students by sex for portions of classes in elementary and secondary 
schools dealing exclusively with human sexuality, 34 CFR 106.34(e); 
or (4) choruses based on vocal range or quality, which may result in 
a single-sex or predominantly single-sex grouping, 34 CFR 106.34(f).
---------------------------------------------------------------------------

Application of Proposed Single-Sex Class Amendments (Proposed 34 CFR 
106.34(b))

    Except for specified exceptions, the prohibitions against excluding 
any student from classes on the basis of sex as set out in the current 
regulations apply to all classes and activities, including 
extracurricular activities, and to all coeducational recipient 
institutions at all levels of education. Our proposed substantive 
changes would apply both to elementary and secondary public \12\ and 
private \13\ recipients. The proposed amendments also would specify 
that the recipient that operates the school is responsible for ensuring 
compliance with the proposed provisions for single-sex classes.
---------------------------------------------------------------------------

    \12\ Proposed 34 CFR 106.34(b) applies to recipients that 
operate coeducational nonvocational public charter schools.
    \13\ See footnote 10.
---------------------------------------------------------------------------

    Proposed 34 CFR 106.34(b) would not apply to postsecondary 
education. Coeducational postsecondary schools would continue to be 
subject to the requirements of the general prohibition contained in the 
existing regulations, and they would not be permitted to offer single-
sex classes pursuant to the provisions of these proposed amendments. 
The existing general prohibition is in 34 CFR 106.34(a) of the proposed 
regulations.
    Since vocational education schools were the only type of elementary 
and secondary schools to which Congress specifically applied Title IX 
admissions requirements, we have limited the prohibition on single-sex 
classes to vocational education.
    Recipients operating vocational schools would continue to be 
subject to the general prohibition against excluding students from 
classes on the basis of sex, and, thus, would not be permitted to offer 
single-sex classes pursuant to the proposed amendments.
    Some school districts offer their vocational education curriculum 
in comprehensive coeducational schools, rather than in separate 
vocational schools. Even in these elementary and secondary schools that 
are not vocational schools, the proposed amendments do not change the 
applicability of the current general regulatory prohibition against 
single-sex vocational education classes. These schools would be able to 
apply the proposed substantive amendments to their nonvocational 
classes, but the proposed amendments would not apply to vocational 
classes.

Recipient's Important Governmental or Educational Objective (Proposed 
34 CFR 106.34(b)(1)(i))

    The proposed amendments would require that a single-sex class be 
based on a recipient's important governmental or educational 
objective,\14\ which may be either--(1) to provide a diversity of 
educational options to students and parents, provided that the single-
sex nature of the class is substantially related to achievement of that 
objective; or (2) to meet the particular, identified educational needs 
of its students, provided that the single-sex nature of the class is 
substantially related to meeting those needs.\15\ In either case, the 
recipient's important governmental or educational objective in 
providing a single-sex class must be implemented evenhandedly. We have 
identified and incorporated into the proposed regulations these two 
important objectives--diversity of educational options and meeting the 
particular, identified needs of its students--either of which could be 
the basis for single-sex classes. Because there may be differences in 
the way achievement of these two important objectives work, we discuss 
them separately in paragraphs that follow. In our discussion of the 
proposed procedural requirement to conduct periodic evaluations of 
single-sex classes, we provide suggestions as to the types of 
information that a recipient might use to determine whether a single-
sex class could be created or maintained consistent with these proposed 
amendments.
---------------------------------------------------------------------------

    \14\ In two cases, under the 14th Amendment to the Constitution, 
in the public postsecondary education school context where there 
were allegations of denial of equal opportunity because of sex, the 
Supreme Court has required that the proponent of a sex-based 
classification demonstrate that the classification serves an 
important governmental objective and that the sex-based 
classification is substantially related to the achievement of that 
objective. Virginia, 518 U.S. at 532-533; Hogan, 458 U.S. at 724.
    \15\ Our proposed amendments for classes differ in this regard 
from those for schools due to differences in the Title IX statute. 
Classes in recipient elementary and secondary schools are covered by 
the statute and our existing regulations. As explained further in 
the following section on schools, admissions to a recipient's 
nonvocational elementary and secondary schools are not covered by 
the Title IX statute.
---------------------------------------------------------------------------

    We invite specific comments on whether there may be additional 
important governmental or educational objectives that could also be the 
basis for single-sex classes that should be incorporated into our final 
regulations.

Diversity of Educational Options (Proposed 34 CFR 106.34(b)(1)(i)(A))

    A recipient may have an important governmental interest to 
evenhandedly support diverse educational options. Thus, the proposed 
amendments would permit a recipient to offer single-sex classes based 
on its objective to provide a diversity of educational options from 
which individual students and their parents may choose.\16\ For 
example, a recipient may determine that students and parents would 
prefer the option of single-sex classes because they believe they would 
provide a benefit not available in coeducational classes. A recipient 
may also determine that it would be appropriate to offer single-sex 
classes because it has reliable information that single-sex classes 
would meet its educational objective.
---------------------------------------------------------------------------

    \16\ This process includes a determination that the single-sex 
nature of the class is substantially related to meeting the 
objective identified.
---------------------------------------------------------------------------

    These proposed amendments, as further described in the following 
paragraphs, also require that a recipient that operates a nonvocational 
coeducational elementary or secondary school may not authorize or offer 
a nonvocational single-sex class unless it provides a substantially 
equal coeducational class \17\ in the same subject pursuant to 34 CFR 
106.34(b)(1)(ii).
---------------------------------------------------------------------------

    \17\ In Virginia, in response to a lower court ruling that an 
institution's policies restricting admission to males unlawfully 
discriminated against females, the State attempted to remedy the 
discrimination by establishing a separate program for females at a 
neighboring women's college. There was no substantially equal 
coeducational program. The Court found that the women's program was 
not substantially equal to the men's program. Virginia, 518 U.S. at 
554. In Hogan the male plaintiff was denied admission on the basis 
of his sex, and the State did not offer either an all-male or a 
coeducational nursing program within a reasonable traveling distance 
from his residence. The only option available was a coeducational 
institution at a considerable distance. The Court stated: ``A 
similarly situated female would not have been required to choose 
between forgoing credit and bearing that inconvenience.'' Hogan, 458 
U.S. at 723, n.8. The U.S. Supreme Court has not addressed the issue 
of whether for constitutional purposes substantial equality would 
require a public entity to provide a substantially equal single-sex 
school or class for students of the excluded sex or whether 
providing those students the opportunity to attend a substantially 
equal coeducational school or class would be sufficient.
---------------------------------------------------------------------------

    A recipient may also provide a substantially equal single-sex class 
in the same subject for the other sex. Furthermore, as discussed in the 
following paragraphs under proposed 34 CFR 106.34(b)(1)(iii) and (2), 
to provide a diversity of options in an evenhanded manner, a 
substantially equal single-sex class may be required in some 
circumstances.

[[Page 11279]]

    The recipient must provide a diversity of educational options in an 
evenhanded manner. However, a single-sex class for each sex, in the 
same subject, generally is not required. For example, if the rationale 
for a single-sex class is the school's desire to provide a diversity of 
options based on parental or student preference and the school uses 
surveys of parents and students to determine which options would be 
desirable, the survey must include parents and students of both sexes. 
If the results of the survey show a strong preference for a single-sex 
class in chemistry for girls, while for boys there is no expressed 
interest in any single-sex classes, the school in this example would 
not violate these proposed provisions by creating a single-sex 
chemistry class for girls without creating a single-sex class for boys. 
However, the school would be required to provide a substantially equal 
coeducational chemistry class.
    As discussed in later paragraphs, consistent with the requirement 
that single-sex classes be provided in an evenhanded manner, OCR will 
examine situations in which recipients offer significantly more single-
sex class opportunities to students of one sex than to students of the 
other sex to determine if they are the result of discrimination. A 
recipient that offers single-sex classes solely in the context of 
evenhandedly providing substantially equal single-sex classes, as well 
as coeducational classes, to both boys and girls is not likely to 
experience compliance problems with proposed 34 CFR 106.34.

Meeting Students' Particular, Identified Educational Needs (Proposed 34 
CFR 106.34(b)(1)(i)(B))

    The proposed amendments would also permit a recipient, under 
appropriate circumstances, to offer single-sex classes based on its 
objective to meet the particular, identified educational needs of its 
students. In order to carry out this objective a recipient may, using 
reliable information and sound educational judgment, determine that a 
single-sex class in a given subject is likely to provide some students 
educational benefits.\18\ A recipient must treat male and female 
students in an evenhanded manner in the process of identifying 
particular educational needs, determining if a single-sex class would 
be substantially related to meeting those needs, and meeting the 
educational needs of both sexes.
---------------------------------------------------------------------------

    \18\ See footnote 16.
---------------------------------------------------------------------------

    The proposed amendments provide that a single-sex nonvocational 
class may be provided only if a substantially equal coeducational class 
is provided to the other sex in the same subject. (See 34 CFR 
106.34(b)(1)(ii) of the proposed amendments.) A recipient may also 
choose to provide a substantially equal single-sex class for the other 
sex in the same subject. Furthermore, under proposed 34 CFR 
106.34(b)(1)(iii), a recipient must provide a substantially equal 
single-sex class for the other sex if such a class is necessary to 
implement its objectives in an evenhanded manner.\19\
---------------------------------------------------------------------------

    \19\ See also 34 CFR 106.34(b)(2).
---------------------------------------------------------------------------

    Under the proposed amendments, if the particular, identified 
educational needs of both sexes are the same, and a single-sex class is 
substantially related to meeting those needs for each sex, then 
students of both sexes must be provided substantially equal single-sex 
classes in the same subject if a single-sex class is provided for one 
sex. However, there may be legitimate differences in particular, 
identified educational needs between some male and female students, as 
well as legitimate differences in whether those needs may best be 
addressed in single-sex classes. Thus, depending on a recipient's 
evenhanded assessment of the particular, identified educational needs 
of male and female students, a recipient may provide a different 
single-sex class to girls, as compared to boys. Thus, the result might 
be differences in subject area or in numbers of single-sex classes 
offered to girls, as compared to boys.
    For example, a school decides to identify and address the highest 
priority need of sixth grade male and female students who are working 
below grade level and to determine if single-sex classes may be 
substantially related to meeting the identified need. The school makes 
a supportable determination that the highest priority educational need 
of these girls is in science and that a single-sex science class would 
best address that need. If, as part of its evenhanded assessment 
process, the school also makes a supportable determination that a 
subject other than science is the highest priority need of the male 
students working below grade level, the proposed amendments would not 
require the school to offer a single-sex science class for these boys. 
The school would be required to offer a substantially equal 
coeducational science class. The school also would, however, be 
required to address the highest priority educational need of these 
boys, to consider whether a single-sex class would best address that 
need, and to address that need appropriately.
    Finally, although different results for boys and girls, in some 
instances, may be permissible under the proposed amendments, a 
recipient must treat male and female students equally in identifying 
whether they have particular educational needs that may be met by 
providing single-sex classes and in responding to those needs.
    As discussed in later paragraphs, OCR will examine situations in 
which a recipient provides significantly more single-sex class 
opportunities to students of one sex than to students of the other sex 
to determine if they are the result of discrimination. A recipient that 
offers single-sex classes solely in the context of evenhandedly 
providing substantially equal single-sex classes, as well as 
coeducational classes, to both boys and girls is not likely to 
experience compliance problems with proposed 34 CFR 106.34.

Substantially Equal Coeducational Class Required (Proposed 34 CFR 
106.34(b)(1)(ii))

    The proposed amendment to the regulations in 34 CFR 
106.34(b)(1)(ii) would require that student participation in single-sex 
classes be on a voluntary basis. This provision clarifies for 
recipients that the general prohibition in the existing regulations 
against assigning students to single-sex classes continues to apply and 
is not substantively affected by these proposed amendments.\20\ Unless 
a substantially equal coeducational class is provided, enrollment in a 
single-sex class is not voluntary. Thus, the proposed amendments 
require that if a recipient provides a single-sex class, it must also 
provide students with the opportunity to enroll in a coeducational 
class in the same subject that is substantially equal to the single-sex 
class. For example, if a high school provided a single-sex Advanced 
Placement Calculus class for boys, it would need to provide a 
coeducational Advanced Placement Calculus class for boys and girls.
---------------------------------------------------------------------------

    \20\ The current regulations, in 34 CFR 106.34(a), state, in 
part: ``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.'' The proposed amendments include this 
provision in proposed 34 CFR 106.34(a) without substantive 
revisions.
---------------------------------------------------------------------------

    In order to ensure that participation in any single-sex class is 
voluntary, a recipient should notify parents or guardians of their 
option to enroll their children in a single-sex class on a voluntary 
basis and receive authorization from parents or guardians

[[Page 11280]]

to place their children in a single-sex class.

Implementing the Recipient's Objective in an Evenhanded Manner 
(Proposed 34 CFR 106.34(b)(1)(iii))

    As mentioned previously, under proposed 34 CFR 106.34(b)(1)(iii), a 
recipient must implement its objective in an evenhanded manner. 
Evenhandedness requires the recipient to provide each sex an equal 
opportunity to benefit from the important governmental or educational 
objective it seeks to achieve by providing single-sex classes. As the 
examples in the section on educational needs illustrate, this provision 
generally does not require a single-sex class for each sex in the same 
subject. However, a recipient must provide a substantially equal 
single-sex class for the other sex if such a class is necessary to 
implement its objectives in an evenhanded manner. Even if a 
substantially equal single-sex class is not required for the other sex, 
the recipient may choose to provide such a class consistent with Title 
IX and the proposed amendments.
    If a recipient provides significantly more single-sex opportunities 
to students of one sex than to students of the other sex, OCR will 
examine whether this is the result of discrimination, taking into 
account the reasonable period of time needed to plan and establish 
single-sex classes. A recipient that offers single-sex classes solely 
in the context of evenhandedly providing substantially equal single-sex 
classes, as well as coeducational classes, to both girls and boys is 
not likely to experience compliance problems with proposed 34 CFR 
106.34(b)(1)(iii).
    We invite specific comments on whether OCR needs more information 
on how to assess if a recipient is implementing its objective in an 
evenhanded manner.

Single-Sex Class for Excluded Sex (Proposed 34 CFR 106.34(b)(2))

    Proposed 34 CFR 106.34(b)(2) clarifies that in some circumstances 
the requirements of proposed paragraph (b)(1) of this section may 
require a recipient to provide a substantially equal single-sex class 
for the excluded sex.

Factors for Determining Substantially Equal (Proposed 34 CFR 
106.34(b)(3))

    The proposed amendments in 34 CFR 106.34(b)(1) permit a recipient 
to provide a single-sex class as long as the recipient provides 
students who are excluded from that class on the basis of sex a 
substantially equal class. This requirement to have substantially equal 
classes does not mean that the classes would need to be identical; the 
proposed amendment requires that policies applicable to the classes and 
benefits provided in them be substantially equal. The proposed 
amendments in 34 CFR 106.34(b)(3) outline the types of factors that the 
Department will consider in comparing single-sex classes to each other 
and to coeducational classes in making the determination of whether 
they are ``substantially equal.'' That is, we will use these factors to 
evaluate whatever combination of single-sex and coeducational classes a 
recipient is providing in a given subject to determine if they are 
substantially equal. The list of factors is not intended to be 
exhaustive and other relevant factors that affect the educational 
benefits provided in these classes will be considered on a case-by-case 
basis. The list includes the following factors:
     Admissions policies and criteria.\21\
---------------------------------------------------------------------------

    \21\ This factor covers prerequisites to admission such as prior 
course requirements or grade point average.
---------------------------------------------------------------------------

     Educational benefits provided, including the 
quality, range, and content of curriculum and other services and the 
quality and availability of books, instructional materials, and 
technology.\22\
---------------------------------------------------------------------------

    \22\ The factors describe the types of educational benefits that 
the Department will compare in determining whether recipients are 
treating male and female students in a nondiscriminatory manner. The 
assessment is solely to determine whether equality of opportunity in 
access to curricular offerings is provided in compliance with Title 
IX and is not intended to require any particular curricular 
offerings by a school district. Thus, the provision is consistent 
with the Department of Education Organization Act (as well as 
similar provisions in the Elementary and Secondary Education Act, as 
amended by the No Child Left Behind Act of 2001), which provides in 
relevant part: ``No provision of a program administered by the 
Secretary or by any other officer of the Department shall be 
construed to authorize the Secretary or any such officer to exercise 
any direction, supervision, or control over the curriculum, program 
of instruction, administration, or personnel of any educational 
institution, school, or school system * * * except to the extent 
authorized by law.'' 20 U.S.C. 3403(b).
---------------------------------------------------------------------------

     Qualifications of faculty and staff.
     Quality, accessibility, and availability of 
facilities and resources provided for the class.
    Under the proposed standard, each factor evaluated does not need to 
be identical, but each must be substantially equal.

Procedural Safeguard: Periodic Evaluations (Proposed 34 CFR 
106.34(b)(4))

    Proposed 34 CFR 106.34(b)(4) would require that recipients 
periodically evaluate their single-sex classes to ensure 
nondiscrimination. Specifically, this proposed section would require 
that evaluations of all single-sex classes be conducted to ensure that 
single-sex classes are based upon genuine justifications and that they 
do not rely on overly broad generalizations about the different talents 
or capacities of male and female students. In addition, this proposed 
section would require that evaluations be conducted to ensure that any 
single-sex classes offered are substantially related to achievement of 
the objective for the classes as required by proposed 34 CFR 
106.34(b)(1)(i).
    The proposed amendments do not prescribe the type of information 
that a recipient must use in making decisions to provide single-sex 
classes or in conducting evaluations, but the following are types of 
information that may be useful and appropriate. For example, a 
recipient may identify particular educational needs using district or 
school-based data including standardized test scores; class grades; 
attendance; suspension and expulsion rates; incidence of pregnancy; 
\23\ and low levels of participation among members of one sex in 
certain curriculum areas. Research or other reliable evidence may be 
the basis for determining that a single-sex class is substantially 
related to meeting the particular, identified needs. Research, 
developed by an agency, organization, social scientist, or by another 
school district, may assist a recipient in making that determination if 
it is reliable and applicable to the recipient's circumstances. 
Similarly, the recipient may conduct its own district or school-based 
research. In addition, a recipient may have other reliable evidence 
such as teacher, parental, or student feedback.
---------------------------------------------------------------------------

    \23\ Cf. 34 CFR 106.40, which is not affected by the proposed 
amendments.
---------------------------------------------------------------------------

    We invite specific comments as to how often a recipient should be 
required to conduct periodic evaluations pursuant to proposed 34 CFR 
106.34(b)(4).

Current and Proposed Requirements for Single-Sex Schools

Current Regulations (Current 34 CFR 106.35)

    The current regulations describe requirements related to admissions 
to elementary and secondary schools operated by LEAs.\24\ Paragraph (a) 
of 34 CFR 106.35 of the current regulations specifies that recipients 
that are LEAs are prohibited from discriminating on the basis of sex in 
admissions to

[[Page 11281]]

vocational education institutions.\25\ Consistent with the Title IX 
statute as discussed later, we are proposing to amend this portion of 
the regulations to make clear that all public and private vocational 
institutions that receive Federal financial assistance are prohibited 
from discriminating on the basis of sex in admissions.
---------------------------------------------------------------------------

    \24\ 34 CFR 106.35.
    \25\ This provision implements the Title IX statute, which 
provides specifically that admissions to certain types of 
educational entities, including institutions of vocational 
education, are covered by Title IX. 20 U.S.C. 1681(a)(1).
---------------------------------------------------------------------------

    Paragraph (b) of the current 34 CFR 106.35 describes requirements 
applicable to recipients that are LEAs that operate single-sex public 
schools. The current regulations do not prohibit recipients from having 
single-sex admissions for these types of schools.\26\ The Title IX 
statute, which only covers admissions to specified types of educational 
institutions, does not include elementary and secondary schools among 
the types of institutions with covered admissions (except with respect 
to those that are also institutions of vocational education, for which 
admissions are covered as discussed in previous paragraphs).\27\ As a 
result, our current regulations do not prohibit single-sex admissions 
to public nonvocational elementary and secondary schools. The equal 
protection requirements of the 14th Amendment to the Constitution apply 
to admissions to public entities, such as school districts and State 
educational agencies (SEAs). \28\
---------------------------------------------------------------------------

    \26\ See 34 CFR 106.15(d).
    \27\ 20 U.S.C. 1681(a)(1).
    \28\ See footnote 14 for information about the equal protection 
requirements that apply to admissions requirements for public 
entities.
---------------------------------------------------------------------------

    The current regulations require that, in the event that an LEA 
provides a nonvocational elementary or secondary school or educational 
unit for students of one sex, then it must provide students of the 
other sex, under the ``same policies and criteria of admission, 
courses, services, and facilities comparable to each course, service, 
and facility offered in or through such schools.'' \29\
---------------------------------------------------------------------------

    \29\ 34 CFR 106.35(b).
---------------------------------------------------------------------------

Proposed Amendments for Single-Sex Schools (Proposed 34 CFR 106.34(c) 
and 34 CFR 106.35)

    We are proposing to amend the current compliance provisions 
applicable to admissions to elementary and secondary vocational schools 
in 34 CFR 106.35(a), which will be redesignated as 34 CFR 106.35, to 
remove the reference to LEAs. Recipients of Federal financial 
assistance, including private schools, may not offer single-sex 
institutions of vocational education.\30\
---------------------------------------------------------------------------

    \30\ Our interpretation is based on the Title IX statute, which 
covers admissions to vocational schools. 34 CFR 106.15(c) and (d).
---------------------------------------------------------------------------

    We are proposing to amend existing 34 CFR 106.35(b) to remove from 
that section the requirements pertaining to nonvocational schools 
operated by LEAs and to move those requirements, with substantive 
amendments, to proposed 34 CFR 106.34. Under the proposed amendments, 
subject to conditions and requirements described in the following 
paragraphs, a recipient that operates public nonvocational elementary 
or secondary schools may not operate a single-sex nonvocational 
elementary or secondary school unless it provides students of the other 
sex substantially equal opportunities in a single-sex school, single-
sex educational unit,\31\ or a coeducational school. The proposed 
amendments also provide for an exception to this requirement for 
certain charter schools. The requirements pertaining to single-sex 
elementary and secondary schools are in paragraph (c) of proposed 34 
CFR 106.34.
---------------------------------------------------------------------------

    \31\ Both the current regulations and the proposed amendments 
use the phrase ``education unit.'' For the purposes of these 
provisions we interpret the term ``education unit'' to mean a 
``school within a school,'' and we are specifically referring to a 
school that is housed within another school. For the sake of clarity 
and simplicity, we will generally use the term ``school'' instead of 
either ``school within a school'' or ``education unit'' in 
explaining the requirements of the proposed amendments.
---------------------------------------------------------------------------

    While Title IX does not prohibit a district from assigning students 
to single-sex schools because admissions to nonvocational elementary 
and secondary schools are exempt from Title IX coverage, recipients are 
cautioned that assigning students to single-sex schools--rather than 
allowing students to voluntarily select between those schools and 
substantially equal coeducational schools--could violate the 
Constitution and the requirements of the Equal Educational 
Opportunities Act of 1974 (EEOA),\32\ which prohibits the assignment of 
students to schools on the basis of sex.
---------------------------------------------------------------------------

    \32\ 20 U.S.C. 1703(c); see footnote 5 on consulting legal 
counsel.
---------------------------------------------------------------------------

Substantially Equal Educational Opportunities Required (Proposed 34 CFR 
106.34(c))

    The proposed amendments do not regulate admissions to public 
nonvocational elementary and secondary schools.\33\ Thus, unlike our 
proposed amendments for single-sex classes, they do not propose to 
require a recipient to justify establishing a single-sex school. The 
proposed amendments permit a recipient to provide a single-sex public 
school as long as the recipient provides students who are excluded from 
that school on the basis of sex substantially equal opportunities in 
another school.
---------------------------------------------------------------------------

    \33\ 20 U.S.C. 1681(a)(1).
---------------------------------------------------------------------------

    The proposed amendments substitute the phrase ``substantially 
equal'' for the term ``comparable'' used in the existing regulations 
for comparing the policies applicable to and benefits provided to 
students in a single-sex school and students excluded from the school 
on the basis of sex. The Supreme Court applied a ``substantially 
equal'' standard in the context of evaluating the constitutionality of 
single-sex postsecondary institutions,\34\ and we have adopted this 
standard here. We intend to convey the concept that although the 
policies and benefits compared do not need to be identical, they do 
need to be substantially equal. As discussed in the next section, the 
proposed amendments would expand the list of factors to be considered 
in making a determination as to whether the benefits provided are 
substantially equal.
---------------------------------------------------------------------------

    \34\ In evaluating educational benefits and opportunities 
provided to male and female students in single-sex postsecondary 
education institutions for 14th Amendment equal protection purposes, 
the Supreme Court has required a standard of ``substantial 
equality.'' Virginia, 518 U.S. at 554.
---------------------------------------------------------------------------

    The proposed amendments specifically provide that the substantially 
equal opportunities may be provided in a single-sex school or in a 
coeducational school.\35\ Thus, the proposed amendments would change 
our interpretation of 34 CFR 106.35(b) of the current regulations that 
the benefits provided to students excluded from a single-sex school 
must be provided in a single-sex setting.\36\ Our prior interpretation 
was based upon the premise that Title IX required recipients to provide 
a single-sex school for each sex to ensure that students of both sexes 
were provided an equal opportunity to attend a single-sex school.
---------------------------------------------------------------------------

    \35\ See footnote 15.
    \36\ 67 FR 31103 (2002).
---------------------------------------------------------------------------

    Upon further analysis, we have determined that, since Title IX is 
silent regarding its application to admissions to nonvocational 
elementary and secondary schools, creation of an unequal number of 
single-sex schools for girls and boys does not implicate Title IX. The 
basis for this interpretation is Congress's decision not to cover 
admissions to nonvocational elementary and secondary schools in Title 
IX.\37\

[[Page 11282]]

Because Title IX does not cover admissions to these types of 
educational institutions, we have determined that Title IX does not 
impose an obligation on these recipients to avoid sex-based disparities 
in providing the opportunity to attend a single-sex nonvocational 
elementary or secondary school.
---------------------------------------------------------------------------

    \37\ The legislative history of Title IX supports this 
interpretation. When admissions coverage under Title IX was being 
considered, Congress was aware that single-sex nonvocational 
elementary and secondary schools existed. Because information about 
these schools was not sufficient to support a decision regarding 
admissions coverage, at least one member of Congress urged the 
Department of Health, Education and Welfare (HEW) to conduct a study 
and indicated that Congress then could make an informed decision. 
92nd Cong., 118 Cong. Rec. 5804, 5807, 5812-13 (1972). HEW did not 
conduct such a study. Moreover, although several substantive 
amendments to Title IX have been enacted since that time, Congress 
has not amended this provision of the statute.
---------------------------------------------------------------------------

    The lack of coverage of admissions to public nonvocational 
elementary and secondary schools does not relieve recipients from all 
obligations to students of the excluded sex. Consistent with Title IX, 
students of both sexes must be provided nondiscriminatory access to 
substantially equal educational benefits. This means that students 
excluded from a single-sex school, on the basis of sex, must be 
provided substantially equal educational benefits in another school. 
However, based on our analysis of the Title IX statute, under the 
proposed amendments the other school may be coeducational or single-
sex.

Factors for Determining Substantially Equal (Proposed 34 CFR 
106.34(c)(3))

    The current regulations provide a description of the types of 
factors that OCR would consider in determining whether two schools, a 
single-sex school and a school available to students excluded on the 
basis of sex from that school, are substantially equal. The proposed 
regulations, in 34 CFR 106.34(c)(3)(i), expand upon the current 
description of factors that OCR would consider in comparing schools for 
this purpose.\38\ Furthermore, the list of factors is not intended to 
be exhaustive, but it is intended to provide recipients with a more 
specific set of criteria. Other relevant factors that affect the 
educational benefits provided in these schools will be considered on a 
case-by-case basis. The list includes the following factors:
---------------------------------------------------------------------------

    \38\ We have added additional factors consistent with the 
Court's opinions addressing single-sex education at postsecondary 
institutions. See Virginia, 518 U.S. at 547-54; Hogan, 458 U.S. at 
723 n.8.
---------------------------------------------------------------------------

     Admissions policies and criteria.\39\
---------------------------------------------------------------------------

    \39\ This factor covers prerequisites to admission such as prior 
course requirements or grade point average.
---------------------------------------------------------------------------

     Educational benefits provided, including the 
quality, range, and content of curriculum and other services and the 
quality and availability of books, instructional materials, and 
technology.\40\
---------------------------------------------------------------------------

    \40\ See footnote 22.
---------------------------------------------------------------------------

     Quality and range of extra-curricular offerings.
     Qualifications of faculty and staff.
     Geographic accessibility.
     Quality, accessibility, and availability of 
facilities and resources.\41\
---------------------------------------------------------------------------

    \41\ The new factors in the proposed amendment are--the 
educational benefits provided; the quality and range of extra-
curricular offerings; the qualifications of faculty and staff; 
geographic accessibility; and the availability of classroom 
facilities and resources.
---------------------------------------------------------------------------

    Each factor does not have to be identical in order for two schools 
to be substantially equal. As specified in proposed 34 CFR 
106.34(c)(3)(ii), OCR will assess the aggregate of benefits provided by 
each school as a whole in making these determinations.

Exception for Certain Charter Schools (Proposed 34 CFR 106.34(c)(2))

    Title IX does not apply to admissions to nonvocational elementary 
and secondary schools under 20 U.S.C. 1681(a)(1); therefore, these 
types of single-sex charter schools are not prohibited by Title IX. If 
a public, nonvocational single-sex charter school is part of a school 
district or LEA that includes other schools, the proposed amendments 
would hold the LEA that operates the schools responsible for ensuring 
that students in the LEA who are excluded on the basis of sex from the 
single-sex charter school are provided substantially equal 
opportunities and benefits consistent with proposed 34 CFR 106.34(c)(1) 
and (c)(3). An LEA will be considered to be ``operating'' a charter 
school that is part of the LEA. Accordingly, the LEA must ensure that 
it provides the sex excluded from a charter school substantially equal 
educational opportunities in a single-sex school or coeducational 
school.
    The proposed amendments exempt nonvocational charter schools that 
are single-school LEAs from the requirements that apply to other 
recipients that operate public nonvocational elementary and secondary 
schools. A chartering authority that receives Federal funds, and that 
charters a nonvocational, single-sex public charter school that is its 
own LEA, may charter a single-sex charter school for one sex without 
ensuring that the other sex is provided substantially equal educational 
opportunities in a single-sex school or coeducational school. A 
chartering authority that receives Federal financial assistance, of 
course, must review and approve or reject proposed charter school 
applications on a non-discriminatory basis. Such a chartering authority 
is not required to provide substantially equal educational 
opportunities to the other sex if the chartering authority is merely 
reviewing and approving charter school applications and is not 
independently operating those schools itself. Moreover, the chartering 
authority may have no control over what types of programs are proposed 
as charter schools, including whether they are single-sex. Therefore, 
requiring a chartering authority to provide the other sex substantially 
equal educational opportunities in a single-sex school or coeducational 
school would require the chartering authority to find an additional 
group of community leaders, developers, or parents who would meet the 
required application criteria and would be willing to provide to the 
other sex substantially equal educational opportunities in another 
charter school. Similarly, a group of community leaders, developers, or 
parents who wish to establish a single-sex charter school that is its 
own LEA should not be required to establish two schools in order to 
meet Title IX requirements.
    Given the Title IX exemption for admissions to nonvocational 
elementary and secondary schools and the functions some chartering 
authorities perform, we have determined that Title IX does not impose 
such an obligation on these chartering authorities and that such an 
obligation on chartering authorities would unduly burden and inhibit 
the creation of single-sex charter schools that are their own LEAs. 
Therefore, the proposed amendments exempt nonvocational charter schools 
that are single-school LEAs from the requirements that apply to other 
recipients that operate public nonvocational elementary and secondary 
schools. We note that the obligations of public chartering authorities, 
including LEAs and SEAs, may differ under the U.S. Constitution, since 
admissions policies are covered under the 14th Amendment.\42\
---------------------------------------------------------------------------

    \42\ See footnote 5 on consulting legal counsel.
---------------------------------------------------------------------------

Current Requirements Related to Classes and Proposed Technical Changes

General Requirements and Other Modifications (Proposed 34 CFR 106.34(a) 
and 34 CFR 106.43)

    With respect to classes and activities in physical education, the 
existing regulations in 34 CFR 106.34(a) provided transition periods 
for

[[Page 11283]]

recipients to comply with the regulations. Recipients at the elementary 
school level had to comply within one year from the effective date of 
the regulations, and recipients at the secondary level and 
postsecondary level had to comply within three years. Because these 
timeframes for compliance expired many years ago, this provision is 
obsolete. Existing paragraph (a) of 34 CFR 106.34 will be removed when 
final regulations are issued, and the regulations will be renumbered.
    Some of the existing provisions of 34 CFR 106.34 apply to 
postsecondary, as well as elementary and secondary, coeducational 
schools. Our proposed amendments would not affect the continued 
applicability of those existing provisions to postsecondary 
institutions. However, because we are proposing other amendments, the 
numbering of these existing exceptions would change, as discussed in 
the following paragraphs.
    We are proposing to retain the general prohibition against 
separation on the basis of sex, which applies to coeducational schools 
at all levels of education, that is in the existing regulations prior 
to paragraph (a) of 34 CFR 106.34. Due to other modifications that we 
are proposing, the general prohibition would be renumbered and become 
paragraph (a) of 34 CFR 106.34. Because our proposed amendments provide 
an exception to allow for single-sex classes in nonvocational 
elementary and secondary schools that may apply to classes of any type, 
except for vocational education classes, we are also proposing to 
delete the introductory listing of specific types of classes to which 
the general prohibition applies.
    Recipients are generally prohibited from separating students on the 
basis of sex within coeducational physical education classes or 
activities by 34 CFR 106.34(a). We are proposing to retain in 34 CFR 
106.34(a)(1) the exception currently provided in 34 CFR 106.34(c) that 
permits 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. Other physical education 
classes in elementary and secondary schools would be covered by 
proposed 34 CFR 106.34(b) regardless of whether the purpose or major 
activity involves bodily contact. These classes may be offered on a 
single-sex basis consistent with the requirements of our proposed 
amendments.
    Similarly, the exception provided in the proposed amendments in 34 
CFR 106.34(a)(2) is the same exception provided in the current 
regulations in 34 CFR 106.34(b). This provision permits grouping of 
students in physical education classes by ability as assessed by 
objective standards of individual performance developed and applied 
without regard to sex. This exception would also continue to apply to 
elementary and secondary education and postsecondary education.
    The exception provided in the proposed amendment to the regulations 
in 34 CFR 106.34(a)(3) is similar, but not identical, to the exception 
provided in the current regulations in 34 CFR 106.34(e). The proposed 
amendment permits separation by sex in classes or portions of classes 
in elementary and secondary schools that deal ``primarily'' with human 
sexuality. The current regulations require that ``portions of the 
classes'' in elementary and secondary schools must deal ``exclusively'' 
with human sexuality in order to separate students by sex. The proposed 
amendment changes ``exclusively'' to ``primarily'' because we recognize 
that issues of human sexuality that may require privacy may be raised 
in situations that are not devoted exclusively to human sexuality, such 
as sexual assault or harassment counseling or defense classes. In 
addition, we recognize that recipients may choose to offer classes that 
focus on issues of human sexuality that may require privacy. This 
provision continues to apply only to elementary and secondary 
education, and it is based on issues of privacy.\43\
---------------------------------------------------------------------------

    \43\ 92nd Cong., 118 Cong. Rec. 5803 (1972).
---------------------------------------------------------------------------

    We are also proposing to retain in 34 CFR 106.34(a)(4) the 
exception currently provided in 34 CFR 106.34(f), which permits 
grouping students for chorus based on vocal range or quality even if it 
results in a single-sex or predominantly single-sex chorus. This 
exception continues to apply to elementary and secondary education and 
postsecondary education, and it is based on real differences between 
the sexes.
    Paragraph (d) of existing 34 CFR 106.34 does not address access to 
classes, but rather addresses nondiscrimination in assessments of 
skills or progress in physical education classes. It applies to 
elementary, secondary, and postsecondary physical education classes, 
and it applies to both single-sex and coeducational physical education 
classes in coeducational schools. In order to avoid confusion about the 
application of this provision, we are proposing to move it, with no 
modifications, to Subpart D of our regulations, as a separate 
provision, proposed 34 CFR 106.43, entitled ``Standards for measuring 
skill or progress in physical education classes.''

Executive Order 12250

    Pursuant to Executive Order 12250, which provides for the Attorney 
General to review proposed regulations implementing Title IX, the 
Acting Assistant Attorney General for Civil Rights has reviewed this 
notice of proposed rulemaking and approved it for publication.

Executive Order 12866

    This rule is considered by the Department to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review. Accordingly, this rule has been 
submitted to the Office of Management and Budget (OMB) for review.

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for administering this program effectively 
and efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs for those recipients that would choose 
to provide single-sex schools or classes.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Summary of Potential Costs and Benefits

    The proposed regulations do not require recipients to provide 
single-sex schools or classes and thus do not require recipients to 
incur any additional costs. Rather, the benefit of the proposed 
regulations is the expanded flexibility to provide single-sex schools 
or classes, if such classes are desired. If recipients choose to 
continue to operate schools or classes under their current policies or 
practices and choose not to provide single-sex schools or classes, no 
added costs will be incurred. Those recipients that choose to provide 
single-sex schools or classes may incur the additional expense to 
administer them. The costs associated with

[[Page 11284]]

providing single-sex schools or classes under the proposed regulations 
will range from minimal to substantial, depending on what options 
recipients choose to provide.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations 
clearly stated?
     Do the proposed regulations contain technical 
terms or other wording that interfere with their clarity?
     Does the format of the proposed regulations 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce their clarity?
     Would the proposed regulations be easier to 
understand if we divided them into more (but shorter) sections? (A 
``section'' is preceded by the symbol ``Sec.  '' and a numbered 
heading; for example, Sec.  106.35 Access to institutions of vocational 
education.)
     Could the description of the proposed 
regulations in the SUPPLEMENTARY INFORMATION section of this preamble 
be more helpful in making the proposed regulations easier to 
understand? If so, how?
     What else could we do to make the proposed 
regulations easier to understand?
    Send any comments that concern how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. These proposed regulations do not require recipients to 
provide single-sex classes or schools, but rather expand flexibility 
for recipients that may be interested in doing so.

Paperwork Reduction Act of 1995

    These proposed regulations do not contain any information 
collection requirements.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79 because it is not a program or activity 
of the Department that provides Federal financial assistance.

Assessment of Educational Impact

    The Secretary particularly requests comments on whether these 
proposed regulations would require transmission of information that any 
other agency or authority of the United States gathers or makes 
available.

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means 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. The proposed regulations in 34 CFR 106.34 and 34 CFR 106.35 
may have federalism implications, as defined in Executive Order 13132. 
We encourage State and local elected officials to review and provide 
comments on these proposed regulations.

Electronic Access to This Document

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

    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: http://www.gpoaccess.gov/nara/index.html.

    (Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects in 34 CFR Part 106

    Education, Sex discrimination.

    Dated: March 3, 2004.
Rod Paige,
Secretary of Education.
    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 106 of title 34 of the Code of Federal Regulations as 
follows:

PART 106--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION 
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

    1. The authority citation for part 106 continues to read as 
follows:

    Authority: 20 U.S.C. 1681 et seq., unless otherwise noted.

    2. Section 106.34 is revised to read as follows:


Sec.  106.34  Access to classes and schools.

    (a) Except as provided for in this section or otherwise in this 
part, a recipient shall not provide or otherwise carry out any of its 
education programs or activities separately on the basis of sex or 
require or refuse participation therein by any of its students on the 
basis of sex.
    (1) This section does not prohibit separation of students by sex 
within physical education classes or activities during participation in 
wrestling, boxing, rugby, ice hockey, football, basketball, and other 
sports the purpose or major activity of which involves bodily contact.
    (2) 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) Classes or portions of classes in elementary and secondary 
schools that deal primarily with human sexuality may be conducted in 
separate sessions for boys and girls.
    (4) Recipients may make requirements based on vocal range or 
quality that may result in a chorus or choruses of one or predominantly 
one sex.
    (b)(1) Classes. General standard. Subject to the requirements in 
this paragraph, a recipient that operates a nonvocational coeducational 
elementary or secondary school may provide nonvocational single-sex 
classes, if--
    (i) Each single-sex class is based on the recipient's objective--
    (A) To provide a diversity of educational options to parents and 
students, provided that the single-sex nature of the class is 
substantially related to meeting that objective; or
    (B) To meet the particular, identified educational needs of its 
students, provided that the single-sex nature of the class is 
substantially related to meeting those needs;
    (ii) In accordance with the requirements of paragraph (a) of this 
section, the recipient provides a substantially equal coeducational 
class in the same subject; and

[[Page 11285]]

    (iii) The recipient implements its objective in an evenhanded 
manner.
    (2) Single-sex class for excluded sex. A recipient that provides a 
single-sex class may be required, subject to the requirements of 
paragraph (b)(1) of this section, to provide a substantially equal 
single-sex class for the excluded sex.
    (3) Substantially equal. Factors that the Department will consider 
in determining whether classes are substantially equal include the 
following: the policies and criteria of admission; the educational 
benefits provided, including the quality, range, and content of 
curriculum and other services and the quality and availability of 
books, instructional materials, and technology; the qualifications of 
faculty and staff; and the quality, accessibility, and availability of 
facilities and resources provided to the class.
    (4) Periodic evaluations. The recipient must conduct periodic 
evaluations to ensure that single-sex classes are based upon genuine 
justifications and do not rely on overly broad generalizations about 
the different talents or capacities of male and female students and 
that any single-sex classes are substantially related to achievement of 
the objective for the classes.
    (5) Definition. For purposes of this paragraph, the term 
``classes'' includes all education activities provided for students by 
a school or in a school.
    (c)(1) Schools. Except as provided in paragraph (c)(2) of this 
section, a recipient that operates a public nonvocational elementary or 
secondary school shall not, on the basis of sex, exclude any person 
from admission to any school that it operates unless it provides the 
other sex substantially equal educational opportunities in a single-sex 
school, single-sex education unit, or coeducational school.
    (2) Exception. A nonvocational public charter school that is not 
part of a local educational agency with other schools may be operated 
as a single-sex charter school without regard to the requirements in 
paragraph (c)(1) of this section.
    (3) Substantially equal. (i) Factors that the Department will 
consider in determining whether schools or education units are 
substantially equal include the following: The policies and criteria of 
admission; the educational benefits provided, including the quality, 
range, and content of curriculum and other services and the quality and 
availability of books, instructional materials, and technology; the 
quality and range of extra-curricular offerings; the qualifications of 
faculty and staff; geographic accessibility; and the quality, 
accessibility, and availability of facilities and resources; and
    (ii) This determination involves an assessment in the aggregate of 
the educational benefits provided by each school as a whole.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 
373, 374; 20 U.S.C. 1681, 1682)


    3. Section 106.35 is revised to read as follows:


Sec.  106.35  Access to institutions of vocational education.

    A recipient shall not, on the basis of sex, exclude any person from 
admission to any institution of vocational education operated by that 
recipient.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 
373, 374; 20 U.S.C. 1681, 1682)


    4. Section 106.43 is added to subpart D to read as follows:


Sec.  106.43  Standards for measuring skill or progress in physical 
education classes.

    If use of a single standard of measuring skill or progress in 
physical education classes has an adverse effect on members of one sex, 
the recipient shall use appropriate standards that do not have that 
effect.

(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 
373, 374; 20 U.S.C. 1681, 1682)

[FR Doc. 04-5156 Filed 3-8-04; 8:45 am]
BILLING CODE 4000-01-P