[Federal Register Volume 71, Number 57 (Friday, March 24, 2006)]
[Rules and Regulations]
[Pages 14994-15003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2890]



[[Page 14993]]

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Part II





Department of Education





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34 CFR Parts 75, 76 and 108



Equal Access to Public School Facilities for the Boy Scouts of America 
and Other Designated Youth Groups; Final Rule

  Federal Register / Vol. 71, No. 57 / Friday, March 24, 2006 / Rules 
and Regulations  

[[Page 14994]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 75, 76, and 108

RIN 1870-AA12


Equal Access to Public School Facilities for the Boy Scouts of 
America and Other Designated Youth Groups

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary adds a new part to title 34 of the Code of 
Federal Regulations and amends 34 CFR parts 75 and 76 to implement the 
provisions of the Boy Scouts of America Equal Access Act (Act). This 
Act directs the Secretary of Education, through the Office for Civil 
Rights (OCR), to ensure compliance with this new law. The regulations 
address equal access to public school facilities by the Boy Scouts of 
America and other designated youth groups.

DATES: These regulations are effective April 24, 2006.

FOR FURTHER INFORMATION CONTACT: Sandra G. Battle, U.S. Department of 
Education, 400 Maryland Avenue, SW., Room 6125, Potomac Center Plaza, 
Washington, DC 20202-1100. Telephone: (202) 245-6767.
    If you use a telecommunications device for the deaf (TDD), you may 
call 1-877-521-2172.
    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: These regulations implement the Boy Scouts 
of America Equal Access Act, 20 U.S.C. 7905. On January 8, 2002, the 
President signed into law the No Child Left Behind Act of 2001 (NCLB), 
Pub. L. 107-110, amending the Elementary and Secondary Education Act of 
1965 (ESEA). The Act is included in these amendments to the ESEA and is 
found in section 9525 of the ESEA. The Act applies to any public 
elementary school, public secondary school, local educational agency 
(LEA), or State educational agency (SEA) that has a designated open 
forum or limited public forum and that receives funds made available 
through the Department of Education (Department). Under the Act, these 
entities may not deny equal access or a fair opportunity to meet to, or 
discriminate against, any group officially affiliated with the Boy 
Scouts of America (Boy Scouts) or any other youth group listed in title 
36 of the United States Code (as a patriotic society) (Title 36 youth 
group) that wishes to conduct a meeting within the covered entity's 
designated open forum or limited public forum.
    The Act authorizes the Secretary to implement this law by issuing 
and securing compliance with rules or orders with respect to the Act's 
requirements through OCR. The Act also directs the Secretary, through 
OCR, to enforce this law in a manner consistent with the procedure used 
under section 602 of the Civil Rights Act of 1964. If a covered public 
elementary school, public secondary school, LEA, or SEA does not comply 
with the Act or regulations issued by the Department, it would be 
subject to the Department's enforcement actions.
    On October 19, 2004, the Secretary published a notice of proposed 
rulemaking (NPRM) for these regulations in the Federal Register (69 FR 
61556). In the preamble to the NPRM, the Secretary discussed on pages 
61557 through 61559 the significant regulations proposed to implement 
the Act. These included the following:
     Providing definitions for the following statutory terms: 
``designated open forum,'' ``outside youth or community group,'' ``to 
sponsor any group officially affiliated with the Boy Scouts of 
America,'' and ``to sponsor any group officially affiliated with any 
other youth group listed in title 36 of the United States Code (as a 
patriotic society).''
     Explaining that neither State nor local law obviates or 
alleviates the obligation to comply with the Act and its implementing 
regulations.
     Providing that the obligation of public elementary 
schools, public secondary schools, LEAs, and SEAs to comply with the 
Act is not limited by the nature or extent of their authority to make 
decisions about the use of school facilities.
     Clarifying that equal access under the Act includes not 
only access to school facilities for meetings before, during, or after 
school, but also includes access to other activities related to an 
intention by any group officially affiliated with the Boy Scouts or any 
other Title 36 youth group to conduct a meeting within a covered 
entity's designated open forum or limited public forum. These other 
activities include, but are not necessarily limited to, means of 
communication and recruitment.
     Explaining that in order to be equal, the access provided 
to any group officially affiliated with the Boy Scouts or any other 
Title 36 youth group must be on terms that are no less favorable than 
the most favorable terms provided to one or more outside youth or 
community groups.
     Clarifying that public schools, LEAs, and SEAs can charge 
fees for this access, but only on terms that are no less favorable than 
the most favorable terms provided to one or more outside youth or 
community groups.
     Noting that the Act does not require any school, agency, 
or school served by an agency to which the Act applies to sponsor any 
group officially affiliated with the Boy Scouts or any other Title 36 
youth group.
     Incorporating the procedural provisions applicable to 
title VI of the Civil Rights Act of 1964 (Title VI).
     Amending 34 CFR 75.500 and 76.500 to add the Act and the 
regulations in part 108 to the list of Federal statutes and regulations 
on nondiscrimination with which grantees, under 34 CFR 75.500, and 
States and subgrantees, under 34 CFR 75.600, that are covered entities 
must comply.
    The significant differences between the NPRM and these final 
regulations are as follows:
     We have added definitions of ``group officially affiliated 
with any other Title 36 youth group,'' ``group officially affiliated 
with the Boy Scouts,'' ``premises or facilities,'' and ``Title 36 youth 
group'' to Sec.  108.3.
     We have added language to Sec.  108.5 that a covered 
entity may require that any group seeking equal access under the Act 
inform the covered entity whether the group is officially affiliated 
with the Boy Scouts or with any other Title 36 youth group. We have 
also added language that a covered entity's failure to request this 
information is not a defense to a covered entity's noncompliance with 
the Act or its implementing regulations.
     We have restructured and modified Sec.  108.6 so that the 
section more clearly explains the circumstances and terms under which 
access is required by the Act and its implementing regulations.
     We have added language to Sec.  108.6 regarding 
nondiscrimination under the Act and its implementing regulations.
     We have deleted some language in proposed Sec.  108.8, 
renumbered this section as Sec.  108.9, and added a new Sec.  108.8 
addressing assurances of compliance.
     We have added language to Sec.  108.9 to address the scope 
of fund termination.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, over 3,000 
parties submitted comments on the

[[Page 14995]]

proposed regulations. An analysis of the comments and of the changes in 
the regulations since publication of the NPRM follows.
    We discuss major substantive issues under the sections of the 
regulations to which they pertain. Generally, we do not discuss 
comments that simply support the regulations, and we do not address 
technical and other minor changes--or suggested changes the law does 
not authorize the Secretary to make.

Section 108.3 Definitions

a. Designated Open Forum
    Comments: One commenter expressed the concern that, under the 
definition, a public school would be required to allow the Boy Scouts, 
but not other youth or community groups, to meet on school premises 
during the school day if the school allowed a single outside youth or 
community group to meet on school premises or in school facilities 
during school hours, such as the Red Cross for a school blood drive. 
The commenter stated the definition would create a far greater right of 
access during the school day for the Boy Scouts and certain other 
groups, based on their viewpoint, than would be available to other 
youth or community groups.
    Another commenter believed the definition would be a valuable tool 
in interpreting the Act because the definition made clear that if a 
school allows outside groups to use school facilities at any time, even 
during school hours, it may not prevent the Boy Scouts from using the 
facilities on the same terms.
    One commenter stated the definition should include literature 
distribution by youth groups, such as the dissemination of recruitment 
materials, even if no meeting occurs with representatives of those 
groups, believing that this would be consistent with the requirement of 
proposed Sec.  108.6(b) pertaining to equal access to means of 
communication.
    Discussion: The definition of designated open forum is consistent 
with the Act's definition of limited public forum, which states that a 
limited public forum exists whenever the school involved grants an 
opportunity for one or more outside youth or community groups to meet 
on school premises or in school facilities before or after school. The 
definition in Sec.  108.3 of a designated open forum retains the 
statutory focus on access provided to one or more outside youth or 
community groups for meetings, and clarifies that, in the context of 
the Act, such a forum exists whenever the school involved designates a 
time and place for one or more outside youth or community groups to 
meet on school premises or in school facilities, including during the 
school day, for reasons other than to provide the school's educational 
program.
    Under this definition, a school retains control over its 
educational program and does not create a designated open forum simply 
by inviting an outside group to the school to present information to 
the students. For instance, if a school, as part of its character 
education program, invites an outside group to speak to the student 
body on saying no to drugs, that does not mean that the school has 
created a designated open forum and must allow any group officially 
affiliated with the Boy Scouts or with any other Title 36 youth group 
to come to the school to conduct a presentation related to character 
education or to conduct meetings with students during school hours. 
Similarly, if the parent teacher association (PTA) of a particular 
school is an outside group not affiliated with the school, and the 
school, as part of its educational program, invites the PTA to speak to 
students about career opportunities, that does not mean that the school 
has created a designated open forum and must allow any group officially 
affiliated with the Boy Scouts or with any other Title 36 youth group 
to come to the school to conduct a presentation related to career 
opportunities or conduct meetings with students during school hours. In 
both of these examples, the schools have not created designated open 
forums, and therefore the Act does not apply.
    The language pertaining to equal access, in section (b)(1) of the 
Act (section 9525(b)(1) of the ESEA, as amended by NCLB), makes clear 
that the protections of the Act are triggered by a request to hold a 
meeting within a covered entity's designated open forum or limited 
public forum by any group officially affiliated with the Boy Scouts or 
with any other Title 36 youth group. Therefore, a designated open forum 
or limited public forum must be a forum in which groups can meet. A 
forum consisting solely of literature distribution does not satisfy 
this requirement and, thus, cannot be a designated open forum.
    The proposed definition for designated open forum included the 
phrase ``the school's educational benefits or services,'' which is not 
as precise as the phrase ``the school's educational program.''
    Changes: We have revised the language in the definition of 
designated open forum to incorporate the phrase ``the school's 
educational program.''
b. Group Officially Affiliated With Any Other Title 36 Youth Group; 
Group Officially Affiliated With the Boy Scouts
    Comments: Two commenters stated that the regulations could be 
interpreted to mean that any groups officially affiliated with the Boy 
Scouts, including churches, synagogues, and nonprofit organizations, 
could use school facilities, and have access to other school-related 
means of communication and student information, for purposes that have 
nothing to do with the Boy Scouts or other Title 36 youth groups.
    Discussion: The Act provides equal access to school premises or 
facilities for any group officially affiliated with the Boy Scouts or 
with any other Title 36 youth group. The focus is equal access for the 
Boy Scouts or other Title 36 youth groups, rather than equal access, 
for any reason, for any organization or group that has any official 
affiliation with the Boy Scouts or with a Title 36 youth group. Thus, 
the Act does not provide equal access to an organization that sponsors 
a Boy Scout troop, but rather provides equal access to the Boy Scout 
troop sponsored by that organization. The Act covers the youth groups 
that are formed as a result of the community organization chartering 
process for the Boy Scouts or similar chartering or other process for 
other Title 36 youth groups.
    Changes: We have provided definitions for group officially 
affiliated with any other Title 36 youth group in Sec.  108.3(g) and 
group officially affiliated with the Boy Scouts in Sec.  108.3(h).
c. Limited Public Forum
    Comments: A commenter stated that the definition of limited public 
forum should include literature distribution by youth groups, such as 
the dissemination of recruitment materials, even if no meeting occurs 
with representatives of those groups, believing that this addition 
would be consistent with the requirement in proposed Sec.  108.6(b) 
pertaining to equal access to means of communication.
    Discussion: The statute defines when a limited public forum exists, 
and the definition in Sec.  108.3 for limited public forum simply 
incorporates that statutory definition.
    Changes: None.
d. Outside Youth or Community Group
    Comments: One commenter argued that the definition of outside youth 
or community group creates a loophole, in that an LEA could claim that 
particular youth groups are affiliated with the LEA and are, thus, 
entitled to access, such as recruiting access, denied to the Boy

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Scouts. The commenter proposed a new definition that focuses on whether 
the youth or community group provides extracurricular activities for 
students outside of school hours. Another commenter requested 
clarification that, under the definition, groups whose members are only 
students or faculty of a particular school, but lack formal affiliation 
with the school, would not be considered outside youth or community 
groups.
    Discussion: The determination of whether a youth or community group 
is an outside youth or community group should not be made based solely 
on whether the group provides extracurricular activities for students 
outside of school hours. Using the provision of extracurricular 
activities for students as the standard to determine ``outside'' status 
might narrow the circumstances under which a limited public forum or 
designated open forum exists, since the standard proposed by the 
commenter would not include community groups serving adults that meet 
at a school, such as adult sports leagues. Since these adult community 
groups might not provide extracurricular activities for students, these 
groups might not be considered ``outside'' groups. Applying the 
commenter's suggested standard, a school could allow these adult 
community groups to meet at the school without creating a limited 
public forum or designated open forum. This result would not be 
consistent with the Act.
    Furthermore, groups that consist only of students or faculty of a 
particular school might be considered ``outside'' groups, depending on 
the circumstances. For example, if a faculty member, on his or her own 
time, leads a Boy Scout troop whose membership is made up entirely of 
students from the faculty member's school, the Boy Scout troop could 
still be considered an outside group.
    If a school or LEA chooses to affiliate itself with a youth or 
community group, the youth or community group is not considered an 
outside group, even if it is a Title 36 youth group. For instance, if a 
school chooses to sponsor a Boy Scout troop, the Boy Scout troop is not 
considered an outside group.
    The determination of whether any particular group, such as a 
school's PTA, is an outside youth or community group must be made on a 
case-by-case basis, depending on the circumstances in each school or 
LEA and must be made in a manner that would not violate the 
nondiscrimination requirements of the Act, in section (b)(1), and the 
regulations in Sec.  108.6(b)(5).
    Changes: None.
e. Premises or Facilities
    Comments: None.
    Discussion: For clarification, we have provided a definition of the 
term premises or facilities. This definition makes clear that the term 
applies to more than just buildings and would, for instance, as applied 
to schools, cover school grounds.
    Changes: We have provided a new definition of the term premises or 
facilities in Sec.  108.3(l).
f. Title 36 of the United States Code (as a Patriotic Society); Title 
36 Youth Group
    Comments: Several commenters sought clarification regarding the 
other youth groups covered by the Act. Some commenters asked about the 
meaning of the phrase ``other patriotic youth groups.'' Other 
commenters asked about the process by which a group becomes recognized 
as a patriotic group and asked whether any group could receive this 
designation.
    Discussion: The statute uses the phrase ``any group officially 
affiliated with the Boy Scouts, or any other youth group listed in 
title 36 of the United States Code (as a patriotic society).'' We read 
this phrase to mean any group officially affiliated with the Boy Scouts 
or any group officially affiliated with any other youth group listed in 
title 36 of the United States Code (as a patriotic society). The 
regulations define ``title 36 of the United States Code (as a patriotic 
society)'' to mean Subtitle II (Patriotic and National Organizations) 
of title 36 (Subtitle II). Congress charters the groups that are listed 
in Subtitle II.
    Subtitle II does not indicate which of the listed organizations are 
youth groups. Thus, it is necessary to apply the Act's definition of 
youth group--``any group or organization intended to serve young people 
under the age of 21''--to determine which of the organizations listed 
under Subtitle II are youth groups covered by the Act. Relevant factors 
to analyze in making this determination include, but are not 
necessarily limited to, the purpose or purposes of the organization as 
defined in the applicable chapter of Title 36 of the United States 
Code, Subtitle II, Part B, and the functional purpose or purposes of 
the organization as defined by its mission statement or other 
principles of operation.
    Given that Congress can change which groups are listed in Title 36 
and given that the stated purposes of any group may change over time, 
it is not possible to identify and provide a comprehensive list of 
every Title 36 youth group. However, several examples of current Title 
36 youth groups are the Big Brothers--Big Sisters of America (36 U.S.C. 
30101), the Boys & Girls Clubs of America (36 U.S.C. 31101), the Girl 
Scouts of the U.S.A. (36 U.S.C. 80301), and Little League Baseball, 
Inc. (36 U.S.C. 130501).
    Changes: We have added a definition of the term Title 36 youth 
group in Sec.  108.3(p).
g. To Sponsor Any Group Officially Affiliated With the Boy Scouts or 
With Any Other Title 36 Youth Group
    Comments: The Boy Scouts stated that the definitions of sponsorship 
are sufficient to implement the requirements of the Act and that no 
changes are necessary to these definitions.
    Discussion: In the NPRM we specifically requested comment on these 
definitions. The Boy Scouts found the definition of sponsorship of any 
group officially affiliated with the Boy Scouts to be sufficient to 
implement the requirements of the Act, and no commenters proposed other 
definitions. Similarly, no commenters objected to, or proposed other 
definitions for, sponsorship of any group officially affiliated with 
any other Title 36 youth group.
    Changes: None.

Section 108.4 Effect of State or Local Law

    Comments: Conflict with State or local laws. Several commenters 
expressed concern that the Act creates a conflict with State or local 
anti-discrimination laws. The commenters believed that school officials 
at the local level should not be compelled to violate these State or 
local laws in order to provide the Boy Scouts with access to public 
schools. These commenters believed that, in jurisdictions with these 
anti-discrimination laws, school officials should have the autonomy to 
make decisions about the use of public school facilities without 
interference from the Federal Government.
    Two of these commenters expressed concern that, because of this 
conflict between the Act and State or local laws, many schools, to the 
detriment of school children, would decide to ban all extracurricular 
groups, either to avoid litigation or to avoid violating the Act and 
risking the loss of Federal funds. One of these commenters questioned--
(1) how school districts could structure their access plans and legally 
comply with the Act, Federal laws against religious discrimination, and 
State or local laws banning sexual orientation discrimination; (2) 
whether the Act

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would protect a school system from being sued for discrimination under 
local or State law if a gay student seeking to join a Boy Scout troop 
at his school was refused entry; and (3) how school districts could 
avoid being sued by groups that exclude students of a particular race, 
religion, etc., but seek access to the public schools, since the Boy 
Scouts and other title 36 patriotic groups are allowed (in the 
commenter's opinion) to avoid compliance with civil rights laws 
mandating equal access by individuals to publicly supported groups. The 
other commenter expressed concern that compelling schools to violate 
anti-discrimination laws in order to give the Boy Scouts access to 
school facilities does not set a good example for American 
schoolchildren.
    One commenter, in reference to the Boy Scouts' ineligibility to 
participate in a State's charitable campaign due to the Boy Scouts' 
inability to sign off on the campaign's nondiscrimination policy, 
questioned whether there would be coordination between Federal and 
State statutes on this issue.
    One commenter stated that school buildings are maintained primarily 
by local, city, and State taxes, and thus local communities should not 
be forced to give unequal and preferential treatment to discriminatory 
organizations like the Boy Scouts. Another commenter expressed concern 
that the Act's requirements add to an already overwhelming bureaucracy, 
explaining that an equal access requirement that public schools treat 
all groups equally already exists in the commenter's State.
    Discussion: Section 108.4 reflects the statutory mandate in section 
(c)(2) of the Act that covered entities must comply with the equal 
access and nondiscrimination requirements notwithstanding any other 
provision of law. This includes State or local law. Therefore, covered 
entities must comply with the Act even if State or local law conflicts 
with the Act.
    The Act exercises a proper Federal role by ensuring that public 
schools receiving funds made available through the Department do not 
exclude the Boy Scouts for exercising their freedom of association to 
set their own leadership criteria, as found by the Supreme Court in Boy 
Scouts of America v. Dale, 530 U.S. 640, 120 S. Ct. 2446 (2000). 
Congress passed the Act to address the situation that the Boy Scouts, 
because of their membership or leadership criteria, had been barred 
from access to some public schools while other youth or community 
groups were granted access.
    It is beyond the scope of the authority of the Department to 
determine whether the Act would protect public school districts from 
being sued for discrimination under State or local law, or how public 
school districts could protect themselves from lawsuits from groups not 
covered by the Act. School districts should consult their attorneys if 
these situations arise.
    Changes: None.
    Comments: Laws protecting rights of gay student groups. More than 
half of the commenters stated that gay-straight alliances and other 
support groups for gay, lesbian, bisexual, and transgender students and 
students questioning their sexual orientation have a legal right to 
meet in public schools. Most of these commenters noted that gay 
students suffer harassment and discrimination at school and asked that 
the final regulations include gay student groups.
    Discussion: The Department does not condone harassment of students 
on any basis in the public schools. However, the Act specifically 
covers any group officially affiliated with the Boy Scouts or with any 
other Title 36 youth group. It would exceed the scope of the statutory 
language if the regulations implementing the statute afforded coverage 
to groups not identified in the statute.
    Of course, the Act does not prohibit schools, LEAs, and SEAs from 
providing equal access to all groups, including those not covered by 
the Act. The Act simply requires that these schools and agencies 
provide equal access to any group officially affiliated with the Boy 
Scouts or with any other Title 36 youth group.
    Changes: None.
    Comments: Interaction with school rules. One commenter questioned 
whether student members of the Boy Scouts would be exempt from bullying 
and nondiscrimination rules within the school.
    Discussion: Neither the Act nor the implementing regulations affect 
the obligation of student members of the Boy Scouts to comply with a 
public school's code of student conduct. Further, neither the Act nor 
the implementing regulations affect the obligation of members of the 
Boy Scouts to comply with a public school's rules pertaining to the 
conduct of members of groups using school premises or facilities. For 
example, if a school's rules of conduct prohibit group members from 
possessing weapons, such as knives, on or in school premises or 
facilities, the school would not be required by the Act to permit 
members of a Boy Scout troop to bring knives to troop meetings held on 
or in school premises or facilities. Thus, student members of the Boy 
Scouts must comply with a public school's code of student conduct in 
the same manner as all other students subject to those policies, and 
members of groups using school premises or facilities must comply with 
a public school's rules pertaining to the conduct of members of groups 
using school premises or facilities in the same manner as all others 
subject to the school's policies. Of course, compliance with these 
student conduct codes or other rules of conduct would not be required 
if they conflict with the Act.
    Changes: None.

Section 108.5 Compliance Obligations

    Comments: Three commenters expressed concerns about holding local 
school districts responsible for complying with the Act in situations 
in which school districts have no authority over decisions concerning 
public use of school facilities. One of these commenters explained that 
the authority of local school districts over the use of facilities 
varies among States, and among local communities, spanning the spectrum 
from local school boards that have sole authority to local school 
boards that have no authority. This commenter believed the regulations 
could result in costly litigation for LEAs, in addition to the 
potential loss of Federal funds, because the regulations create an 
unworkable situation for public schools that have no authority over the 
public use of school facilities. This commenter recommended that the 
regulations be revised to specify that if local school districts do not 
have authority over the public use of school facilities, the 
responsibility for complying with the Act shifts to the responsible 
agency, with the responsible agency assuming any liability associated 
with the failure to comply with the Act.
    The second commenter recommended that, if the intent of the 
regulations is to prevent schools from transferring the authority to 
determine use of school facilities to an outside entity not regulated 
by the Act, then the regulations should include language preventing 
schools from doing so. This commenter also believed these regulations 
raised questions about the confusion that would occur if an outside 
organization had the authority to grant access to school premises or 
facilities while the school itself had the authority to grant access to 
student information or means of communication.
    The third commenter recommended that the regulations be revised to 
state that the obligation of public schools to comply with the Act is 
limited by the nature or extent of their authority to

[[Page 14998]]

make decisions about use of school facilities.
    Discussion: The Secretary recognizes that public schools, LEAs, or 
SEAs may not always have the independent authority to make decisions 
concerning the use of school premises or facilities, and that other 
entities may be responsible for making those decisions. The statute, 
however, holds public schools, LEAs, and SEAs responsible for 
compliance with the Act and does not condition their compliance 
obligation on whether they have the authority to make decisions about 
the use of their school premises or facilities. Section 108.5(a) 
clarifies that the statute applies to covered public elementary 
schools, public secondary schools, LEAs, and SEAs regardless of their 
authority to make decisions about the use of school premises or 
facilities.
    We recognize that the Act imposes new obligations on covered 
entities. To satisfy these obligations, covered entities must know if a 
group seeking access is a group that is officially affiliated with the 
Boy Scouts or with any other Title 36 youth group. While it might not 
be difficult to ascertain that a particular Boy Scout troop seeking 
access is a group that is officially affiliated with the Boy Scouts, it 
might be more difficult to ascertain that another group seeking access 
is officially affiliated with a Title 36 youth group.
    Accordingly, covered entities may require that any group seeking 
equal access inform the covered entity whether the group is officially 
affiliated with the Boy Scouts or is officially affiliated with any 
other Title 36 youth group. A covered entity would take this action at 
the time of the group's request for access. Of course, there would be 
no need for a covered entity to take this action if that covered entity 
already knew that a group seeking equal access is officially affiliated 
with the Boy Scouts or is officially affiliated with any other Title 36 
youth group. Additionally, a covered entity's failure to request this 
information is not a defense to a covered entity's noncompliance with 
the Act or the regulations.
    Changes: We have revised Sec.  108.5 by adding language that a 
covered entity may require that any group seeking equal access under 
the Act inform the covered entity whether the group is officially 
affiliated with the Boy Scouts or with any other Title 36 youth group 
and by adding language that a covered entity's failure to request this 
information is not a defense to a covered entity's noncompliance with 
the Act or the regulations.

Section 108.6 Equal Access

    Comments: Conflict with Title VI. One commenter stated that the 
regulations should be modified to clarify that the regulations do not 
limit, in any way, the applicability of section 601 of Title VI, which 
prohibits discrimination on the basis of race, color, or national 
origin. The commenter believed that, because the leadership or 
membership criteria of a group covered by the Act could be 
discriminatory on the basis of race, color, or national origin, and 
because the regulations do not explicitly contain such a limitation, it 
appears the regulations are attempting to trump Title VI.
    Discussion: Section 601 of Title VI has not been amended or 
superseded in any way by the Act or these regulations.
    Changes: None.
    Comments: Circumstances under which access is required. A few 
commenters questioned when groups covered by the Act must be permitted 
to have access, asking under what circumstances a covered entity could 
deny access to these groups. Two commenters questioned what types of 
groups a school district could permit to have access to its facilities 
without also having to permit the Boy Scouts to have the same access.
    Discussion: Section 108.6(a) restates the statutory requirement 
that no covered entity shall deny equal access or a fair opportunity to 
meet to, or discriminate against, any group officially affiliated with 
the Boy Scouts or with any other Title 36 youth group that requests to 
conduct a meeting within the covered entity's designated open forum or 
limited public forum. Thus, if a covered entity has a designated open 
forum or limited public forum, then it must allow any group officially 
affiliated with the Boy Scouts or with any other Title 36 youth group 
to meet in that designated open forum or limited public forum. As 
further discussed under the heading Sec.  108.6(b)(4) Equal Access: 
Terms, this access must be on terms that are no less favorable than the 
most favorable terms provided to one or more outside youth or community 
groups. Of course, if a school district does not have a designated open 
forum or limited public forum, the Act would not apply.
    We recognize that the proposed regulations might not have made 
clear that in order to obtain access under the Act, a group must first 
request to conduct a meeting in the covered entity's designated open 
forum or limited public forum. If that group does not request to meet 
in the covered entity's forum, then that group is not entitled under 
the Act to access to any other benefits and services, such as a 
school's bulletin board.
    Changes: We have restructured Sec.  108.6 so that the section more 
clearly explains the circumstances under which access is required under 
the Act.

Section 108.6(b)(2) Equal Access: Benefits and Services

    Comments: Benefits and services covered. Some commenters questioned 
what activities are covered by the Act. One commenter requested that 
the term ``school activities'' be stricken from the regulations because 
the commenter found the term confusing and not defined.
    Discussion: The range of benefits and services covered by the Act 
is determined by what a covered entity provides to one or more outside 
youth or community groups that have access to meet in the covered 
entity's designated open forum or limited public forum. Whatever those 
benefits and services are, the covered entity must provide access to 
all of those benefits and services to any group officially affiliated 
with the Boy Scouts or with any other Title 36 youth group that 
requests to conduct a meeting in that same forum. As further discussed 
under the heading Sec.  108.6(b)(4) Equal Access: Terms, this access 
must be on terms that are no less favorable than the most favorable 
terms provided to one or more outside youth or community groups. Thus, 
if another outside youth or community group that is allowed to meet in 
the covered entity's designated open forum is permitted to send home 
with students informational materials, then the covered entity must 
allow groups officially affiliated with the Boy Scouts or with any 
other Title 36 youth group that request to meet in that same designated 
open forum to send home informational materials. If, however, the 
covered entity does not permit any outside youth or community groups 
that are allowed to meet in the covered entity's designated open forum 
to send home informational literature, then the covered entity does not 
have to permit groups officially affiliated with the Boy Scouts or with 
any other Title 36 youth group that request to meet in that designated 
open forum to send home informational literature.
    The NPRM preamble used the term ``school activities'' in reference 
to Sec.  108.6, and the proposed regulations used the term 
``activities.'' We agree that we need to avoid confusion.
    Changes: We have added language to clarify the circumstances under 
which equal access to benefits and services is required, and we have 
replaced the term

[[Page 14999]]

``activities'' with the term ``benefits and services.''
    Comments: Classroom instruction and school assemblies. A few 
commenters questioned whether the Act covers classroom instruction. One 
of these commenters was opposed to allowing the Boy Scouts the 
opportunity to meet during classroom instructional time. Another 
commenter stated that the regulations should specify the Boy Scouts' 
right to go into classrooms and participate in school assemblies so 
that they can speak to students about scouting.
    Discussion: The Act does not require access, but rather equal 
access. Thus, if one or more outside youth or community groups that are 
allowed to meet in a covered entity's designated open forum or limited 
public forum are given access to a benefit or service, then any group 
covered by the Act that requests to meet in that same forum must be 
given access to that benefit or service. As further discussed under the 
heading Sec.  108.6(b)(4) Equal Access: Terms, this access must be on 
terms that are no less favorable than the most favorable terms provided 
to one or more outside youth or community groups. However, if a covered 
entity decides to deny access to a particular benefit or service to all 
outside youth or community groups that have access to meet in that 
designated open forum or limited public forum, that decision would not 
violate the Act. For instance, if a school decides that no outside 
youth or community groups that have access to meet in the covered 
entity's designated open forum or limited public forum may hold 
recruitment assemblies during school hours so that school hours can be 
devoted to instruction, the Act does not require that school to make an 
exception for any group covered by the Act.
    Changes: None.
    Comments: Literature distribution and other means of communication. 
One commenter stated that the regulations should specify the Boy 
Scouts' right to distribute informational flyers about scouting. 
Another commenter objected to the fact that the regulations failed to 
define access as including the right of the Boy Scouts and similar 
organizations to distribute literature, including recruitment material, 
to students at schools.
    Another commenter believed a school district could lawfully limit 
access to a forum based on subject matter or speaker identity and 
questioned whether, under the regulations, a school district could 
lawfully exclude the Boy Scouts from a school district's literature 
distribution forum if they were not among the class of speakers to 
which the literature distribution forum was (in the commenter's 
opinion) lawfully limited. This commenter further questioned whether, 
if a school district could not lawfully exclude the Boy Scouts from 
such a forum, the school district would then be required to permit 
access to other community groups speaking on the same subject matter as 
the Boy Scouts even if those other groups were not among the class of 
speakers to which the literature distribution forum was (in the 
commenter's opinion) lawfully limited.
    Another commenter stated that the final regulations should clarify 
that access to means of communication is limited to communicating 
information about the meetings themselves.
    Discussion: If a school decides that no outside youth or community 
groups that are allowed to meet in the school's designated open forum 
or limited public forum may distribute literature, such as 
informational packets and recruitment materials, the Act does not 
require that the school make an exception for any group covered by the 
Act. If, however, a school permits one or more outside youth or 
community groups that are allowed to meet in the school's designated 
open forum or limited public forum to distribute literature, such as 
informational packets and recruitment materials, then the school must 
provide groups covered by the Act that request to hold meetings in the 
same forum with the opportunity to distribute literature, such as 
informational packets and recruitment materials. As further discussed 
under the heading Sec.  108.6(b)(4) Equal Access: Terms, this access 
must be on terms that are no less favorable than the most favorable 
terms provided to one or more outside youth or community groups.
    Whether the covered entity must permit groups not covered by the 
Act to have access in order to distribute literature is beyond the 
scope of the Act and these regulations.
    Any group officially affiliated with the Boy Scouts or with any 
other Title 36 youth group must request to meet in the school's limited 
public forum or designated open forum in order to have access to means 
of communication. However, this access to means of communication is not 
necessarily limited to communicating information about the meetings 
themselves. It depends on what the covered entity provides to one or 
more outside youth or community groups that are allowed to meet in that 
same forum. If the covered entity allows only notices about meetings to 
be sent home with students, then groups officially affiliated with the 
Boy Scouts or with any other Title 36 youth group can only send home 
with students notices about the meetings. However, if the covered 
entity allows one or more outside youth or community groups that are 
allowed to meet in the same forum to send home other types of 
literature, such as informational packets and recruitment materials, 
then the school must allow groups officially affiliated with the Boy 
Scouts or with any other Title 36 youth group to send home these other 
types of literature.
    Changes: None.
    Comments: Recruitment issues related to access to student 
information. One commenter recommended that the access required by the 
regulations incorporate the provisions from NCLB pertaining to access 
for armed forces recruitment and for recruitment purposes by 
institutions of higher education.
    Discussion: Access for recruitment under the Act is not the same as 
NCLB's access for armed services recruitment and recruitment by 
institutions of higher education, provided under section 9528 of the 
ESEA, as amended by NCLB.
    Changes: None.
    Comments: Fundraising. Another commenter believed the regulations 
overlooked fundraising, stating that it was not clear from the 
regulations whether the Boy Scouts would be allowed to fundraise on 
school premises on terms no less favorable than the most favorable 
terms afforded to other community groups, such as the Girl Scouts. The 
commenter believed that, if the Girl Scouts are permitted to fundraise 
by posting fliers about cookie sales and by conducting sales on campus, 
then the Boy Scouts should be accorded the same rights.
    Discussion: Although fundraising is not listed as a specific 
benefit or service, if a covered entity allows one or more outside 
youth or community groups to meet in the covered entity's designated 
open forum or limited public forum to engage in fundraising, such as by 
posting notices on school bulletin boards and selling items on campus, 
then the school must provide groups covered by the Act that request to 
hold meetings in the same forum with an equal opportunity to engage in 
fundraising, such as by posting notices on school bulletin boards and 
selling items on campus. As further discussed under the heading Sec.  
108.6(b)(4) Equal Access: Terms, this access must be on terms that are 
no less favorable than the most favorable terms provided to one or more 
outside youth or community groups.

[[Page 15000]]

    Changes: None.

Section 108.6(b)(3) Equal Access: Fees

    Comments: One commenter expressed concern about the costs public 
schools incur due to property damage and theft that results if they are 
forced to allow groups to use their buildings. The commenter questioned 
whether schools could require these groups to pay a rental fee. Another 
commenter believed groups covered by the Act should not only have equal 
access to schools, but should be able to use the facilities free of 
charge. Another commenter was concerned that many Boy Scout troops 
cannot afford to pay the fees charged to access public school 
facilities and thus are denied access to the facilities because of 
their inability to pay these fees.
    Discussion: Whether any group covered by the Act can be charged 
fees in connection with access, including, but not necessarily limited 
to, conducting meetings on or in school premises or facilities, using 
school-related means of communication, or conducting recruitment 
activities, depends on whether fees are charged to other outside youth 
or community groups that are allowed to meet in the same designated 
open forum or limited public forum. If a covered entity charges fees to 
other outside youth or community groups, then it may charge fees to any 
group covered by the Act. However, as more fully explained under the 
heading Sec.  108.6(b)(4) Equal Access: Terms, these fees must be 
charged on terms that are no less favorable than the most favorable 
terms provided to one or more outside youth or community groups.
    Changes: None.

Section 108.6(b)(4) Equal Access: Terms

    Comments: None.
    Discussion: Any determinations of which youth or community groups 
are outside youth or community groups must be made on a case-by-case 
basis, depending on the circumstances in each school or LEA and must be 
made in a manner that would not violate the nondiscrimination 
requirements of the Act, in section (b)(1), and the regulations, in 
Sec.  108.6(b)(5).
    Proposed Sec.  108.6 repeated the equal access standard four times. 
This repetitive format is somewhat cumbersome. We have decided to state 
the standard for equal access one time and to clarify that this 
standard applies to any access provided under these regulations and to 
any fees charged for this access. Thus, the standard applies to all 
forms of access, including, but not necessarily limited to, meetings 
(Sec.  108.6(b)(1)), benefits and services (Sec.  108.6(b)(2)), and any 
fees charged for this access (Sec.  108.6(b)(3)).
    Changes: We have added a new paragraph Sec.  108.6(b)(4), regarding 
the terms under which access must be provided under the Act and these 
regulations.

Section 108.6(b)(5) Equal Access: Nondiscrimination

    Comments: None.
    Discussion: The proposed regulations may not have made clear that, 
consistent with the requirements in section (b)(1) of the Act, 
decisions relevant to the provision of equal access must be made on a 
nondiscriminatory basis. Any determinations of which youth or community 
groups are outside groups must be made using objective, 
nondiscriminatory criteria, and these criteria must be used in a 
consistent, equal, and nondiscriminatory manner.
    Change: We have added a new paragraph Sec.  108.6(b)(5), regarding 
nondiscrimination under the Act and these regulations.

Section 108.7 Voluntary Sponsorship

    Comments: Two commenters noted the distinction between a public 
school sponsoring a Boy Scout troop and a public school providing equal 
access to a privately sponsored Boy Scout troop. Two commenters 
suggested that public schools cannot lawfully sponsor Boy Scout troops, 
given the Boy Scouts' leadership and membership policies.
    Discussion: The Act does not address the legality of school 
sponsorship of Boy Scout troops. The Act simply provides that nothing 
in the law should be construed to require any school, agency, or school 
served by an agency to sponsor any group officially affiliated with the 
Boy Scouts or with any other Title 36 youth group.
    Changes: None.

Section 108.8 Assurances

    Comments: None.
    Discussion: The Act directs the Secretary, through OCR, to enforce 
the law in a manner consistent with the procedure used under section 
602 of the Civil Rights Act of 1964. That enforcement process includes 
obtaining assurances from applicants for Federal financial assistance 
that they will comply with Title VI. This requirement is in the Title 
VI regulations in 34 CFR 100.4. In the proposed regulations in Sec.  
108.8, we proposed to incorporate by reference this Title VI assurances 
provision.
    We recognize that proposed Sec.  108.8 might not have made clear 
that covered entities have an obligation to provide assurances of 
compliance with the Act. We also recognize that some requirements of 
the Title VI assurances provision in 34 CFR 100.4 are not applicable to 
the Act. A separate regulatory section on assurances would more 
effectively put schools, LEAs, and SEAs on notice of their obligation 
to provide these assurances of compliance.
    Changes: We renumbered proposed Sec.  108.8 as Sec.  108.9 and 
added a new Sec.  108.8 that specifically addresses assurances of 
compliance with the Act. We also revised renumbered Sec.  108.9 by 
removing the reference to 34 CFR 100.4, which is the Title VI 
assurances provision.

Section 108.9 Procedures

    Comments: One commenter suggested that the regulations contain an 
informal complaint process that would not require immediate recourse to 
the courts. This commenter also suggested that the burden of showing 
compliance should be on the school, rather than placing the burden of 
showing noncompliance on the individual Cubmaster or den leader, given 
the mismatch in resources between a school (or school district) and an 
individual Scouter (or Pack). Another commenter suggested that the 
regulations provide that local school districts have the option to 
provide their own administrative process for review and appeal of 
access decisions and that this process must be exhausted prior to 
filing complaints with OCR. This same commenter suggested that the 
regulations clarify that the law does not provide a private cause of 
action. Another commenter asked, if an atheist student is barred from 
access to a school's Boy Scout troop and sues under Federal law, how 
would OCR simultaneously defend this student's legal rights and those 
of the Boy Scout troop and/or the school?
    Discussion: The Act directs the Secretary, through OCR, to enforce 
the law in a manner consistent with the procedure used under section 
602 of the Civil Rights Act of 1964. That enforcement process, which in 
its entirety includes fund termination, is described in the procedural 
provisions applicable to Title VI in 34 CFR parts 100 and 101. We 
indicated in proposed Sec.  108.8 that these procedural provisions in 
part 100 and part 101 also would apply to compliance under the Act.
    Under the Title VI enforcement process, any person may file a 
complaint with OCR alleging a violation of the relevant law. In an OCR 
complaint investigation OCR does not represent either the individual 
who

[[Page 15001]]

filed the complaint or the entity against which the complaint was 
filed.
    We decline to create another informal complaint process and do not 
think it appropriate to restrict OCR's enforcement of the Act by 
requiring exhaustion of a process at the school district level before 
OCR accepts complaints alleging violations of the Act. Furthermore, it 
is beyond the Secretary's authority to determine whether or not there 
is a private cause of action under the Act.
    We recognize that the proposed regulations did not clearly address 
the scope of fund termination. One of the Title VI regulatory 
procedural provisions referenced in proposed Sec.  108.8 was 34 CFR 
100.8(c), which addresses termination of or refusal to grant or to 
continue Federal financial assistance. Among other things, Sec.  
100.8(c) limits the termination or refusal to grant or continue Federal 
financial assistance ``to the particular political entity, or part 
thereof, or other applicant or recipient as to whom such a finding has 
been made and shall be limited in its effect to the particular program, 
or part thereof, in which such noncompliance has been so found.'' This 
limitation, however, is inconsistent with language in the Act which 
states that, notwithstanding any other provision of law, no funds made 
available through the Department shall be provided to any school, 
agency, or school served by an agency that fails to comply with the 
Act. The language in 34 CFR 100.8(c) regarding limitations on the 
termination of Federal financial assistance does not apply to 
enforcement of the Act.
    As discussed previously, we also recognize that the language in 
proposed Sec.  108.8 referencing the Title VI assurances provision in 
34 CFR 100.4 might not have made clear that covered entities have an 
obligation to provide assurances of compliance with the Act, and we 
recognize that some requirements of the Title VI assurances provision 
in 34 CFR 100.4 are not applicable to the Act.
    Changes: We have renumbered proposed Sec.  108.8 as Sec.  108.9. We 
have added language to Sec.  108.9 to clarify that, notwithstanding any 
other provision of law, including Sec.  100.8(c), no funds made 
available through the Department shall be provided to any school, 
agency, or school served by an agency that fails to comply with the Act 
or this part. We have also added a new Sec.  108.8 that specifically 
addresses assurances of compliance with the Act, and we have revised 
Sec.  108.9 by removing the reference to 34 CFR 100.4.

Executive Order 12250

    Pursuant to Executive Order 12250, which provides for the 
coordination of various laws prohibiting discriminatory practices in 
Federal programs and programs receiving Federal financial assistance, 
the Assistant Attorney General for Civil Rights has reviewed and 
approved these final regulations.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. We have determined this to be a ``significant'' 
regulatory action within the meaning of Executive Order 12866 and thus 
the Office of Management and Budget (OMB) has reviewed these final 
regulations. Under the terms of the order we have assessed the 
potential costs and benefits of this regulatory action.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these final regulations, we have determined that 
the benefits of the regulations justify the costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Summary of Potential Costs and Benefits

    The potential costs associated with the final regulations are those 
resulting from statutory requirements and those we have determined to 
be necessary for administering this program effectively and 
efficiently. The final regulations do not impose any specified costs. 
If recipients have to change their practices in order to meet the equal 
access and nondiscrimination requirements of the statute, they may 
incur some costs. Any costs, including costs to comply with information 
collection requirements, likely would be minimal. The potential 
benefits of these final regulations are that stakeholders have easily 
accessible, codified, published regulations that clarify both the 
substantive obligations of the law and how the Department will enforce 
the law. By engaging in rulemaking, we were able to obtain input from 
stakeholders and other interested parties that helped us develop clear 
and accessible regulations. By developing final regulations for use in 
enforcing the Act, we complied with the directive in the Act to enforce 
the law in a manner consistent with the procedures used to enforce 
Title VI. The final regulations incorporate existing procedural 
sections of the Title VI regulations, and clarify the substantive 
obligations of covered entities.

Executive Order 13132

    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. We reviewed and considered comments that addressed 
federalism issues.

Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control number assigned to the 
collection of information in these final regulations at the end of the 
affected section of the regulations (Sec.  108.8).

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

34 CFR Part 75

    Accounting, Administrative practice and procedure, Education, Grant 
programs--education, Private schools, Reporting and recordkeeping 
requirements.

34 CFR Part 76

    Administrative practice and procedure, Compliance, Eligibility, 
Grant administration, Reporting and recordkeeping requirements.

[[Page 15002]]

34 CFR Part 108

    Boy Scouts of America, Education, Equal access, Reporting and 
recordkeeping requirements.

    Dated: March 21, 2006.
Margaret Spellings,
Secretary of Education.

0
For the reasons discussed in the preamble, the Secretary amends parts 
75 and 76 of, and adds a new part 108 to, title 34 of the Code of 
Federal Regulations to read as follows:

PART 75--DIRECT GRANT PROGRAMS

0
1. The authority citation for part 75 continues to read as follows:

    Authority: 20 U.S.C. 1221e-3 and 3474, unless otherwise noted.


0
2. Section 75.500 is amended by:
0
A. Designating the existing text as paragraph (a).
0
B. In the chart in newly designated paragraph (a), removing ``45 CFR 
part 90.'' and inserting, in its place, ``34 CFR part 110.''
0
C. Adding a new paragraph (b) to read as follows:


Sec.  75.500  Federal statutes and regulations on nondiscrimination.

* * * * *
    (b) A grantee that is a covered entity as defined in Sec.  108.3 of 
this title shall comply with the nondiscrimination requirements of the 
Boy Scouts of America Equal Access Act, 20 U.S.C. 7905, 34 CFR part 
108.

PART 76--STATE-ADMINISTERED PROGRAMS

0
3. The authority citation for part 76 continues to read as follows:

    Authority: 20 U.S.C. 1221e-3, 3474, 6511(a), and 8065a, unless 
otherwise noted.

0
4. Section 76.500 is amended by:
0
A. Designating the existing text as paragraph (a).
0
B. In the chart in newly designated paragraph (a), removing ``45 CFR 
part 90.'' and inserting, in its place, ``34 CFR part 110.''
0
C. Adding a new paragraph (b) to read as follows:


Sec.  76.500  Federal statutes and regulations on nondiscrimination.

* * * * *
    (b) A State or subgrantee that is a covered entity as defined in 
Sec.  108.3 of this title shall comply with the nondiscrimination 
requirements of the Boy Scouts of America Equal Access Act, 20 U.S.C. 
7905, 34 CFR part 108.

0
5. Add part 108 to read as follows:

PART 108--EQUAL ACCESS TO PUBLIC SCHOOL FACILITIES FOR THE BOY 
SCOUTS OF AMERICA AND OTHER DESIGNATED YOUTH GROUPS

Sec.
108.1 Purpose.
108.2 Applicability.
108.3 Definitions.
108.4 Effect of State or local law.
108.5 Compliance obligations.
108.6 Equal access.
108.7 Voluntary sponsorship.
108.8 Assurances.
108.9 Procedures.


    Authority: 20 U.S.C. 7905, unless otherwise noted.

Sec.  108.1  Purpose.

    The purpose of this part is to implement the Boy Scouts of America 
Equal Access Act, 20 U.S.C. 7905.

(Authority: 20 U.S.C. 7905)


Sec.  108.2  Applicability.

    This part applies to any public elementary school, public secondary 
school, local educational agency, or State educational agency that has 
a designated open forum or limited public forum and that receives funds 
made available through the Department.

(Authority: 20 U.S.C. 7905)


Sec.  108.3  Definitions.

    The following definitions apply to this part:
    (a) Act means the Boy Scouts of America Equal Access Act, section 
9525 of the Elementary and Secondary Education Act of 1965, as amended 
by section 901 of the No Child Left Behind Act of 2001, Pub. L. 107-
110, 115 Stat. 1425, 1981-82 (20 U.S.C. 7905).
    (b) Boy Scouts means the organization named ``Boy Scouts of 
America,'' which has a Federal charter and which is listed as an 
organization in title 36 of the United States Code (Patriotic and 
National Observances, Ceremonies, and Organizations) in Subtitle II 
(Patriotic and National Organizations), Part B (Organizations), Chapter 
309 (Boy Scouts of America).
    (c) Covered entity means any public elementary school, public 
secondary school, local educational agency, or State educational agency 
that has a designated open forum or limited public forum and that 
receives funds made available through the Department.
    (d) Department means the Department of Education.
    (e) Designated open forum means that an elementary school or 
secondary school designates a time and place for one or more outside 
youth or community groups to meet on school premises or in school 
facilities, including during the hours in which attendance at the 
school is compulsory, for reasons other than to provide the school's 
educational program.
    (f) Elementary school means an elementary school as defined by 
section 9101(18) of the Elementary and Secondary Education Act of 1965, 
as amended by section 901 of the No Child Left Behind Act of 2001, Pub. 
L. 107-110, 115 Stat. 1425, 1958 (20 U.S.C. 7801).
    (g) Group officially affiliated with any other Title 36 youth group 
means a youth group resulting from the chartering process or other 
process used by that Title 36 youth group to establish official 
affiliation with youth groups.
    (h) Group officially affiliated with the Boy Scouts means a youth 
group formed as a result of a community organization charter issued by 
the Boy Scouts.
    (i) Limited public forum means that an elementary school or 
secondary school grants an offering to, or opportunity for, one or more 
outside youth or community groups to meet on school premises or in 
school facilities before or after the hours during which attendance at 
the school is compulsory.
    (j) Local educational agency means a local educational agency as 
defined by section 9101(26) of the Elementary and Secondary Education 
Act of 1965, as amended by section 901 of the No Child Left Behind Act 
of 2001, Pub. L. 107-110, 115 Stat. 1425, 1961 (20 U.S.C. 7801).
    (k) Outside youth or community group means a youth or community 
group that is not affiliated with the school.
    (l) Premises or facilities means all or any portion of buildings, 
structures, equipment, roads, walks, parking lots, or other real or 
personal property or interest in that property.
    (m) Secondary school means a secondary school as defined by section 
9101(38) of the Elementary and Secondary Education Act of 1965, as 
amended by section 901 of the No Child Left Behind Act of 2001, Pub. L. 
107-110, 115 Stat. 1425, 1965 (20 U.S.C. 7801).
    (n) State educational agency means a State educational agency as 
defined by section 9101(41) of the Elementary and Secondary Education 
Act of 1965, as amended by section 901 of the No Child Left Behind Act 
of 2001, Pub. L. 107-110, 115 Stat. 1425, 1965 (20 U.S.C. 7801).
    (o) Title 36 of the United States Code (as a patriotic society) 
means title 36 (Patriotic and National Observances, Ceremonies, and 
Organizations), Subtitle II (Patriotic and National

[[Page 15003]]

Organizations) of the United States Code.
    (p) Title 36 youth group means a group or organization listed in 
title 36 of the United States Code (as a patriotic society) that is 
intended to serve young people under the age of 21.
    (q) To sponsor any group officially affiliated with the Boy Scouts 
or with any other Title 36 youth group means to obtain a community 
organization charter issued by the Boy Scouts or to take actions 
required by any other Title 36 youth group to become a sponsor of that 
group.
    (r) Youth group means any group or organization intended to serve 
young people under the age of 21.

(Authority: 20 U.S.C. 7905)


Sec.  108.4  Effect of State or local law.

    The obligation of a covered entity to comply with the Act and this 
part is not obviated or alleviated by any State or local law or other 
requirement.

(Authority: 20 U.S.C. 7905)


Sec.  108.5  Compliance obligations.

    (a) The obligation of covered entities to comply with the Act and 
this part is not limited by the nature or extent of their authority to 
make decisions about the use of school premises or facilities.
    (b) Consistent with the requirements of Sec.  108.6, a covered 
entity must provide equal access to any group that is officially 
affiliated with the Boy Scouts or is officially affiliated with any 
other Title 36 youth group. A covered entity may require that any group 
seeking equal access inform the covered entity whether the group is 
officially affiliated with the Boy Scouts or is officially affiliated 
with any other Title 36 youth group. A covered entity's failure to 
request this information is not a defense to a covered entity's 
noncompliance with the Act or this part.

(Authority: 20 U.S.C. 7905)


Sec.  108.6  Equal access.

    (a) General. Consistent with the requirements of paragraph (b) of 
this section, no covered entity shall deny equal access or a fair 
opportunity to meet to, or discriminate against, any group officially 
affiliated with the Boy Scouts or officially affiliated with any other 
Title 36 youth group that requests to conduct a meeting within that 
covered entity's designated open forum or limited public forum. No 
covered entity shall deny that access or opportunity or discriminate 
for reasons including the membership or leadership criteria or oath of 
allegiance to God and country of the Boy Scouts or of the Title 36 
youth group.
    (b) Specific requirements. (1) Meetings. Any group officially 
affiliated with the Boy Scouts or officially affiliated with any other 
Title 36 youth group that requests to conduct a meeting in the covered 
entity's designated open forum or limited public forum must be given 
equal access to school premises or facilities to conduct meetings.
    (2) Benefits and services. Any group officially affiliated with the 
Boy Scouts or officially affiliated with any other Title 36 youth group 
that requests to conduct a meeting as described in paragraph (b)(1) of 
this section must be given equal access to any other benefits and 
services provided to one or more outside youth or community groups that 
are allowed to meet in that same forum. These benefits and services may 
include, but are not necessarily limited to, school-related means of 
communication, such as bulletin board notices and literature 
distribution, and recruitment.
    (3) Fees. Fees may be charged in connection with the access 
provided under the Act and this part.
    (4) Terms. Any access provided under the Act and this part to any 
group officially affiliated with the Boy Scouts or officially 
affiliated with any other Title 36 youth group, as well as any fees 
charged for this access, must be on terms that are no less favorable 
than the most favorable terms provided to one or more outside youth or 
community groups.
    (5) Nondiscrimination. Any decisions relevant to the provision of 
equal access must be made on a nondiscriminatory basis. Any 
determinations of which youth or community groups are outside groups 
must be made using objective, nondiscriminatory criteria, and these 
criteria must be used in a consistent, equal, and nondiscriminatory 
manner.

(Authority: 20 U.S.C. 7905)


Sec.  108.7  Voluntary sponsorship.

    Nothing in the Act or this part shall be construed to require any 
school, agency, or school served by an agency to sponsor any group 
officially affiliated with the Boy Scouts or with any other Title 36 
youth group.

(Authority: 20 U.S.C. 7905)


Sec.  108.8  Assurances.

    An applicant for funds made available through the Department to 
which this part applies must submit an assurance that the applicant 
will comply with the Act and this part. The assurance shall be in 
effect for the period during which funds made available through the 
Department are extended. The Department specifies the form of the 
assurance, including the extent to which assurances will be required 
concerning the compliance obligations of subgrantees, contractors and 
subcontractors, and other participants, and provisions that give the 
United States a right to seek its judicial enforcement. An applicant 
may incorporate this assurance by reference in subsequent applications 
to the Department.
    (Approved by the Office of Management and Budget under control 
number 1870-0503.)

(Authority: 20 U.S.C. 7905)


Sec.  108.9  Procedures.

    The procedural provisions applicable to title VI of the Civil 
Rights Act of 1964, which are found in 34 CFR 100.6 through 100.11 and 
34 CFR part 101, apply to this part, except that, notwithstanding these 
provisions and any other provision of law, no funds made available 
through the Department shall be provided to any school, agency, or 
school served by an agency that fails to comply with the Act or this 
part.

(Authority: 20 U.S.C. 7905)

[FR Doc. 06-2890 Filed 3-23-06; 8:45 am]
BILLING CODE 4000-01-P