[Federal Register Volume 71, Number 206 (Wednesday, October 25, 2006)]
[Rules and Regulations]
[Pages 62530-62543]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-17858]



[[Page 62529]]

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Part III





Department of Education





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34 CFR Part 106



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

  Federal Register / Vol. 71, No. 206 / Wednesday, October 25, 2006 / 
Rules and Regulations  

[[Page 62530]]


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DEPARTMENT OF EDUCATION

34 CFR Part 106

RIN 1870-AA11


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

AGENCY: Office for Civil Rights, Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations implementing Title IX of 
the Education Amendments of 1972 (Title IX), which prohibits sex 
discrimination in federally assisted education programs and activities. 
These amendments clarify and modify Title IX regulatory requirements 
pertaining to the provision of single-sex schools, classes,\1\ and 
extracurricular activities in elementary and secondary schools. The 
amendments expand flexibility for recipients to provide single-sex 
education, and they explain how single-sex education may be provided 
consistent with the requirements of Title IX.
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    \1\ The requirements for classes and extracurricular activities 
are the same. For the sake of simplicity, we generally use the term 
``class'' in the preamble analysis of comments and changes. A noted 
exception is our discussion of comments from the public regarding 
extracurricular activities specifically.

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DATES: These regulations are effective November 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. For additional copies of this document, you may 
call the Customer Service Team for the Office for Civil Rights (OCR) at 
(202) 245-6800 or 1-800-421-3481.
    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: Title IX prohibits discrimination on the 
basis of sex in education programs and activities that receive Federal 
financial assistance.\2\ The Department's Title IX regulations 
implement Title IX's nondiscrimination requirements in education 
programs and activities assisted by the Department.\3\ These amendments 
to the regulations establish new standards that OCR will use in 
determining \4\ whether recipients that choose to operate single-sex 
elementary and secondary classes, extracurricular activities, and 
schools \5\ are doing so consistent with their Title IX obligations not 
to discriminate on the basis of sex for the purposes of receiving 
financial assistance from the Department.
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    \2\ 20 U.S.C. 1681(a).
    \3\ 34 CFR part 106.
    \4\ OCR would make these determinations in resolving any 
complaints or compliance reviews related to these issues. See 34 CFR 
100.7, made applicable to the Title IX regulations by Sec.  106.71.
    \5\ These regulations do not require single-sex classes, 
extracurricular activities, or schools.
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    On March 9, 2004, the Secretary published a notice of proposed 
rulemaking (NPRM) for this part in the Federal Register (69 FR 11276). 
We explained that these amendments to the regulations are intended to 
provide recipients with additional flexibility in providing single-sex 
classes, extracurricular activities, and schools in elementary and 
secondary education. At the same time, these amendments ensure for 
students that single-sex classes, extracurricular activities, and 
schools are provided in a nondiscriminatory manner. In the preamble to 
the proposed regulations, on pages 11276 through 11282, we discussed 
the major changes needed to accomplish these objectives.\6\ These 
changes included the following:
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    \6\ The NPRM also discussed minor and technical changes 
including:
     Amending Sec.  106.34(a) to delete obsolete timeframes; 
to move the general prohibition against providing education programs 
or activities separately on the basis of sex or refusing or 
requiring participation in education programs or activities on the 
basis of sex from an undesignated part of the former Sec.  106.34 
published in 1980 to Sec.  106.34(a); and, because the proposed 
amendments provided for an exception that would permit single-sex 
classes in nonvocational elementary and secondary schools of any 
type, except for vocational education classes or vocational 
extracurricular activities, to delete from Sec.  106.34 the 
introductory listing of specific types of classes to which the 
general prohibition applies.
     Amending Sec.  106.34(a) to move the exceptions to the 
general prohibition, relating to physical education, sex education, 
and chorus, to Sec.  106.34(a)(1) and (2), (a)(3) and (a)(4), 
respectively, and to expand the exception for sex education, Sec.  
106.34(a)(3), to include classes in elementary and secondary 
education that deal ``primarily'' with human sexuality, rather than 
only those that deal ``exclusively'' with human sexuality.
     Amending Sec.  106.35 to clarify that the prohibitions 
against sex discrimination in admissions to vocational education 
schools apply to all recipients, public and private, and to move the 
requirements, including the substantive amendments, related to 
nonvocational schools operated by local educational agencies (LEAs) 
to Sec.  106.34(c).
     Adding a new Sec.  106.43 and moving to it, from Sec.  
106.34(d) of the former regulations, the provision regarding 
standards for measuring skill or progress in physical education.
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     Amending Sec.  106.34(b) to add a new exception to the 
general prohibition against single-sex classes and extracurricular 
activities. The exception applies to nonvocational classes and 
extracurricular activities in elementary and secondary coeducational 
schools that are not vocational schools.\7\ Under this exception a 
recipient would be permitted to offer a single-sex class or 
extracurricular activity if (1) the purpose of the class or 
extracurricular activity is achievement of an important governmental or 
educational objective, and (2) the single-sex nature of the class or 
extracurricular activity is substantially related to achievement of 
that objective. (Proposed Sec.  106.34(b)(1)(i)). The two important 
objectives described in the proposed regulations were to provide a 
diversity of educational options to parents and students and to meet 
the particular, identified educational needs of students. (Proposed 
Sec.  106.34(b)(1)(i)). The proposed amendments also described, for 
those recipients that choose to provide single-sex classes or 
extracurricular activities under this new exception, requirements 
necessary to ensure nondiscrimination. Under these requirements, as 
described in the proposed regulations, the recipient must treat male 
and female students in an evenhanded manner in implementing its 
objective, and it must always provide a substantially equal 
coeducational class or extracurricular activity in the same subject or 
activity. (Proposed Sec.  106.34(b)(1)(ii), (iii)). The proposed 
amendments provided that, in addition to the required substantially 
equal coeducational class or extracurricular activity in the same 
subject or activity, a substantially equal single-sex class or 
extracurricular activity for students of the other sex may be required 
to ensure nondiscriminatory implementation. (Proposed Sec.  
106.34(b)(2)). The proposed amendment provided a non-exhaustive list of 
factors that the Department will

[[Page 62531]]

consider in determining whether classes or extracurricular activities 
are substantially equal (Proposed Sec.  106.34(b)(3)), and required the 
recipient to conduct periodic evaluations to ensure nondiscrimination 
(Proposed Sec.  106.34(b)(4)). The proposed regulations defined 
``classes'' to include all education activities provided for students 
by a school or sponsored by a school, and it was intended to include 
extracurricular activities.\8\ (Proposed Sec.  106.34(b)(5)).
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    \7\ As explained in the preamble to the proposed regulations, 
the requirements for classes and extracurricular activities apply to 
recipients that operate public and private nonvocational 
coeducational schools. Private elementary and secondary schools are 
subject to the 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 of 1965, as amended, 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. These private schools are not subject to 
these amended regulations, but the LEA must ensure that its 
programs, including services to private school students, are 
consistent with Title IX.
    \8\ 69 FR 11276, footnote 1.
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     Amending Sec.  106.34(c) to include from former Sec.  
106.35, with substantive changes, the nondiscrimination requirements 
applicable to the operation of nonvocational single-sex public 
schools.\9\ The proposed amendment provided generally that a recipient 
that operates a public nonvocational elementary or secondary school may 
operate a single-sex school only if it provides substantially equal 
opportunities for students of the other sex in another school and that 
the other school may be either single-sex or coeducational. (Proposed 
Sec.  106.34(c)(1)). As explained in the preamble to the proposed 
regulations, this represents a change in interpretation of Title IX. 
Under the prior interpretation, if a recipient operated a single-sex 
public school for students of one sex, we required it to offer a 
comparable single-sex school for students of the other sex.
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    \9\ As explained in the preamble to the proposed regulations, 
the requirements pertaining to the provision of single-sex schools 
do not apply to recipients that operate private, nonvocational 
elementary or secondary schools.
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    The proposed amendments also exempted nonvocational public charter 
schools that are single-school LEAs from the requirement to provide a 
substantially equal school for students of the other sex. (Proposed 
Sec.  106.34(c)(2)). In addition, the proposed amendments provided a 
non-exhaustive list of factors the Department would use in determining 
whether the schools are substantially equal and provided that the 
Department will use an aggregate approach in making this determination. 
(Proposed Sec.  106.34(c)(3)).

Significant Changes Between the Proposed Regulations and the Final 
Regulations

     Clarification that Sec.  106.34(b)(1) through (5) applies 
to extracurricular activities, as well as to classes: We have added the 
term ``extracurricular activities'' throughout Sec.  106.34(b)(1) 
through (5) to clarify that these provisions apply to both classes and 
extracurricular activities. As described later in this section, we are 
also clarifying the scope of coverage of paragraph (b)(1) through (4) 
of Sec.  106.34.
     Clarification that a recipient's objective must be 
``important'': Section 106.34(b)(1) of the proposed regulations 
specified, in paragraph (i), that each single-sex class or 
extracurricular activity must be based on the ``recipient's 
objective.'' Recipients that are public entities must have an important 
governmental objective and recipients that are private entities must 
have an important educational objective. We have clarified this 
provision in the final regulations by adding the word ``important'' to 
describe the recipient's objective.
     Revisions of ``diversity of educational options'' 
objective: The proposed regulations stated that a ``diversity of 
educational options to parents and students'' was an important 
objective that may serve as a basis for providing single-sex classes. 
(Proposed Sec.  106.34(b)(1)(i)(A)). We have revised the regulatory 
language to clarify that this objective is ``to improve educational 
achievement of its students, through a recipient's overall established 
policy, to provide diverse educational opportunities, provided that the 
single-sex nature of the class or extracurricular activity is 
substantially related to achieving that objective.''
     Clarification that participation in single-sex classes and 
extracurricular activities must be completely voluntary: The proposed 
regulations in Sec.  106.34(b)(1)(ii) referenced the requirements of 
Sec.  106.34(a) to ensure together with the requirement to provide a 
coeducational class, that recipients did not assign students 
involuntarily to single-sex classes. New paragraph (iii) of Sec.  
106.34(b)(1) provides that student enrollment in single-sex classes and 
extracurricular activities must be completely voluntary.
    To accommodate the addition of this new paragraph, we have 
renumbered the other paragraphs in this section. The requirement for 
evenhanded treatment of male and female students is now in Sec.  
106.34(b)(1)(ii), the requirement that participation in single-sex 
classes and extracurricular activities must be completely voluntary is 
in Sec.  106.34(b)(1)(iii), and the requirement to provide a 
substantially equal coeducational class or extracurricular activity is 
in Sec.  106.34(b)(1)(iv). We also have removed the reference to 
paragraph (a) in this paragraph because it is no longer needed.
     Clarification of aggregate approach regarding the 
assessment of substantial equality of classes in Sec.  106.34(b)(3) and 
schools in Sec.  106.34(c)(3): We have clarified the description of the 
Department's use of an aggregate approach for considering factors in 
assessments of substantial equality by deleting Sec.  106.34(c)(ii) of 
the proposed regulations, which was misunderstood by commenters, and by 
adding the clarifying language, ``either individually or in the 
aggregate as appropriate,'' to Sec.  106.34(b)(3), regarding factors 
the Department will consider in the assessment of substantial equality 
of classes, and to Sec.  106.34(c)(3), regarding factors the Department 
will consider in the assessment of substantial equality of schools, in 
the final regulations.
     Addition of ``intangible features'' to factors in Sec.  
106.34(b)(3) and (c)(3); addition of ``geographic accessibility'' 
factor in Sec.  106.34(b)(3): The proposed regulations provided non-
exhaustive lists of factors in Sec.  106.34(b)(3) and (c)(3) that the 
Department will consider in comparing classes or extracurricular 
activities and schools, respectively, for the purposes of determining 
compliance. We have added ``intangible features'' and ``reputation of 
faculty'' as an example of an intangible feature to both lists of 
factors in the final regulations. We also have added ``geographic 
accessibility'' as a factor in Sec.  106.34(b)(3) because it may be 
relevant in certain circumstances in compliance determinations.
     Modification of provisions on periodic evaluations: The 
proposed regulations in Sec.  106.34(b)(4) required that recipients 
conduct periodic evaluations of single-sex classes to ensure, among 
other things, that the classes and activities are based on genuine 
justifications and do not rely on overly broad generalizations about 
the different talents or capacities of either sex. Title IX also does 
not permit single-sex classes or extracurricular activities to rely on 
overly broad generalizations about the preferences of either sex. 
Therefore, we added the word ``preferences'' to Sec.  106.34(b)(4). We 
also have added the term ``important'' to clarify that the evaluation 
must ensure that the single-sex class or extracurricular activity is 
substantially related to the recipient's important objective.
     Clarification addressing the frequency of the procedural 
requirement for periodic evaluations: In the preamble to the proposed 
regulations, we requested comments regarding how often recipients 
should conduct the periodic evaluations required by Sec.  106.34(b)(4). 
The proposed regulations were silent on this issue. The final 
regulations add a new paragraph (ii) to Sec.  106.34(b)(4) that 
specifies that evaluations for the purposes of

[[Page 62532]]

Sec.  106.34(b)(4)(i) must be conducted at least every two years.
     Scope of coverage of Sec.  106.34(b)(1) through (4): The 
proposed regulations in Sec.  106.34(b)(5) defined ``class'' for the 
purposes of Sec.  106.34(b)(1) through (4), and that definition was 
intended to cover academic classes and extracurricular activities. We 
have determined that rather than define ``class,'' it is clearer and 
more useful to include a provision on the scope of coverage of 
paragraph (b)(1) through (4) of Sec.  106.34. We have revised Sec.  
106.34(b)(5) to provide that paragraph (b)(1) through (4) applies to 
classes and extracurricular activities provided by a recipient directly 
or through another entity, and to clarify that paragraph (b)(1) through 
(4) does not apply to interscholastic, club, or intramural athletics, 
which are subject to the requirements of Sec. Sec.  106.41 and 
106.37(c).
     Definition of ``school'' and ``school within a school'': 
The proposed regulations in Sec.  106.34(c)(1) referred to a single-sex 
education unit. For the purposes of this paragraph, we consider an 
``education unit'' to mean a ``school within a school'' and that term 
to mean a school that is housed within another school. We believe that 
the term ``school within a school'' and this explanation are clearer, 
more accurate, and more useful to recipients than the term ``education 
unit.'' For this reason we have added a new paragraph (4) to Sec.  
106.34(c) that defines the term ``school'' for the purposes of 
paragraph (c)(1) through (3) to include a ``school within a school'' 
and explains that the latter term means ``an administratively separate 
school located within another school.'' We have deleted the term 
``single-sex education unit'' from Sec.  106.34(c)(1) because it is no 
longer necessary in light of the new definition.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the preamble to the 
proposed regulations, we received approximately 5,860 comments on the 
proposed regulations. An analysis of the comments and of the changes in 
the regulations since publication of the proposed regulations follows.
    We group major issues according to subject under the appropriate 
sections of the final regulations. Generally, we do not address 
technical or minor changes and suggested changes that the law does not 
authorize the Secretary to make.

Section 106.34. Access to Classes and Schools

1. Research
    Comments: Some commenters recommended that the Department postpone 
amendment of the regulations. Among the comments were recommendations 
that we wait until pilot projects were conducted, until completion of a 
Department-commissioned study on single-sex schools, or until the 
completion of additional scientific research that concludes that 
single-sex education is beneficial to students.
    Discussion: Title IX has always permitted single-sex schools under 
conditions that ensure nondiscrimination. Existing educational research 
suggests that single-sex education may provide benefits to some 
students under certain circumstances. For an overview of the literature 
assessing single-sex schools, see Single Sex Versus Coeducational 
Schooling: A Systematic Review, U.S. Department of Education, Office of 
Planning, Evaluation and Policy Development, 2005, available on the 
Department's Web site. Although there is a debate among educators on 
the effectiveness of single-sex education, the final regulations permit 
each recipient to make an individualized decision about whether single-
sex educational opportunities will achieve the recipient's important 
objective and whether the single-sex nature of those opportunities is 
substantially related to achievement of that important objective 
consistent with the nondiscrimination requirements of these 
regulations.
    Changes: None.
2. Legal Standards for Single-Sex Classes (Sec.  106.34(b))
    Comments: Some commenters objected to amending the regulations to 
permit additional flexibility to provide single-sex education because 
they were concerned that sex discrimination may result. Some commenters 
were particularly concerned about sex discrimination resulting from 
single-sex classes, given that the former regulations had restricted 
single-sex classes to very limited circumstances. Some commenters 
expressed the view that single-sex public education is generally 
illegal, analogizing it to race-segregated public education, which is 
unconstitutional. Some commenters expressed the view that the 
amendments were inconsistent with standards pertaining to sex 
discrimination under the Equal Protection Clause of the 14th Amendment 
to the U.S. Constitution (Equal Protection Clause) and that recipients 
who implemented programs consistent with these regulations might be 
subject to litigation. Some commenters recommended that the final 
regulations provide notice about constitutional requirements.
    Discussion: The Title IX statute requires equal educational 
opportunity regardless of sex, and both Title IX and the regulations 
\10\ have always permitted single-sex nonvocational elementary and 
secondary schools.\11\ With respect to schools, Congress both required 
that recipients that operate public schools conduct their education 
program or activity in a manner that does not discriminate on the basis 
of sex and permitted these recipients to operate single-sex schools 
within their school districts consistent with the nondiscrimination 
requirements. In issuing the original Title IX regulations, the former 
Department of Health, Education, and Welfare chose to require generally 
that classes be coeducational to ensure nondiscrimination. 45 CFR 86.34 
(1975). Given that Congress intended for school districts to be 
operated in a manner that both prohibits sex discrimination and permits 
the operation of single-sex schools under conditions that ensure 
nondiscrimination, we believe that it is consistent with the intent of 
Congress to permit recipients additional flexibility to offer single-
sex classes as long as they are offered under conditions that ensure 
nondiscrimination. These regulations permit recipients to continue to 
operate solely coeducational classes and provide the requirements that 
will ensure that, if recipients choose to provide single-sex classes, 
they will do so in a nondiscriminatory manner.
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    \10\ Comments pertaining solely to the legal standards 
applicable to schools are discussed in subsequent paragraphs in 
connection with Sec.  106.34(c)(1) through (4), which provides 
requirements for single-sex schools.
    \11\ 20 U.S.C. 1681(a)(1); Sec.  106.15(d) and former Sec.  
106.35 published in 1980. Title IX also includes exemptions for 
voluntary youth organizations (e.g., Boy Scouts and Girl Scouts), 
Boys' and Girls' Nation or State conferences, and father-son and 
mother-daughter activities. 20 U.S.C. 1681(a)(6)(B), (7), and (8). 
The Title IX regulations historically have permitted sex-separate 
athletic teams if selection is based on competitive skill or the 
activity involved is a contact sport (Sec.  106.41(b)) and sex-
separate physical education activities involving a contact sport 
(former Sec.  106.34(c) or Sec.  106.34(a)(1) in these final 
regulations). The Title IX regulations also historically have 
permitted sex separation in classes on human sexuality (former Sec.  
106.34(e) or Sec.  106.34(a)(3) in these final regulations) and for 
pregnant students, on a voluntary basis (Sec.  106.40(b)(1) and 
(3)).
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    Although the Supreme Court has ruled race-segregated public 
education per se unconstitutional,\12\ the Court has

[[Page 62533]]

not struck down the legality of single-sex public elementary or 
secondary education \13\ under either Title IX or the Constitution.\14\ 
In analyzing whether sex-separate admissions policies in public 
postsecondary undergraduate institutions were consistent with the 
standards of the Equal Protection Clause, the Supreme Court has 
indicated that to justify a sex-based classification the public entity 
must demonstrate that it is based on an important governmental 
objective and that exclusion of students of the other sex is 
substantially related to achievement of that objective.\15\ The Supreme 
Court has ruled that the ``justification must be genuine, not 
hypothesized or invented post hoc in response to litigation'' and that 
``it must not rely on overbroad generalizations about the different 
talents, capacities, or preferences of males and females.'' \16\ 
Subsequent paragraphs describe how the Title IX regulations also 
prohibit treatment based on overly broad sex-based generalizations.
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    \12\ Brown v. Board of Education, 347 U.S. 483 (1954).
    \13\ There are no Supreme Court opinions on the issue of single-
sex public elementary and secondary education. In 1977, the Court, 
by an evenly divided vote and without an opinion, let stand a 
decision allowing, under the Equal Protection Clause, a school 
district that also operated coeducational high schools to operate 
two comparable single-sex high schools, one for girls and one for 
boys. Vorchheimer v. School District of Philadelphia, 532 F.2d 880 
(3rd Cir. 1976), affirmed by an equally divided Court, 430 U.S. 703 
(1977) (per curiam). More recently, the Court determined in a case 
involving the Virginia Military Institute that, by denying females 
the educational opportunities provided to males in a single all-male 
postsecondary school, the State had denied equal protection to 
females. United States v. Virginia, 518 U.S. 515 (1996).
    \14\ The Court uses different standards to evaluate 
classifications based on race, as compared to sex, to determine if 
they are consistent with the U.S. Constitution. Racial 
classifications are analyzed under the standard of strict scrutiny, 
whereas sex-based classifications are analyzed under the standard of 
intermediate scrutiny. Grutter v. Bollinger, 539 U.S. 306, 326-327 
(2003); Virginia, 518 U.S. at 532-533.
    \15\ Virginia, 518 U.S. at 533, quoting Mississippi University 
for Women v. Hogan, 458 U.S. 718, 724 (1982).
    \16\ Virginia, 518 U.S. at 533.
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    With respect to the comments about consistency of these regulations 
with Equal Protection Clause standards, the Department enforces its 
Title IX regulations, which prohibit discrimination on the basis of sex 
in education programs and activities by public and private recipients 
of Federal assistance. The Equal Protection Clause prohibits sex 
discrimination by public actors, such as public school districts. If 
possible, the regulatory provisions of Title IX are informed by 
constitutional principles, but because the scope of the Title IX 
statute differs from the scope of the Equal Protection Clause,\17\ 
these regulations do not regulate or implement constitutional 
requirements or constitute advice about the U.S. Constitution. Rather, 
they implement Title IX by establishing the nondiscrimination 
requirements that the Department will enforce with respect to 
recipients that choose to provide single-sex education. These 
regulations do not require that recipients implement single-sex 
education. Recipients may wish to consult legal counsel regarding how 
the Equal Protection Clause or other applicable legal authorities 
prohibiting sex discrimination \18\ may affect any particular single-
sex school or class they propose to offer.
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    \17\ For example, as explained in the Department's ``Guidelines 
on current title IX requirements related to single-sex classes and 
schools,'' although recipients that operate public schools are 
subject to constitutional requirements pertaining to their 
justification for establishing single-sex schools, because the Title 
IX statute does not cover admissions to nonvocational elementary and 
secondary schools, the Department is generally precluded from 
examining the recipient's justification. 67 FR 31101, 31103 (May 8, 
2002).
    \18\ Recipients that are public entities, such as public school 
districts, are subject to the sex discrimination prohibitions of the 
Equal Protection Clause. Public elementary and secondary schools are 
also subject to the requirements of the Equal Educational 
Opportunities Act of 1974, 20 U.S.C. 1701-1721 (EEOA), which, among 
other things, contains prohibitions against the involuntary 
assignment of students to sex-separate schools on the basis of sex. 
20 U.S.C. 1703(c), 1705, and 1720(c). Recipients also are subject to 
private litigation under Title IX for intentional discrimination on 
the basis of sex. Public school and private school recipients also 
may be subject to State or local laws prohibiting single-sex classes 
or schools.
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    Changes: None.
3. Procedural Safeguards
    Comments: Some commenters recommended additional requirements, such 
as pre-approval of single-sex classes or schools by the Department, 
specific data maintenance requirements in the regulations, reporting 
requirements to the Department, and routine review or monitoring by the 
Department to ensure nondiscrimination.
    Discussion: We believe that these regulations and our current 
enforcement requirements and procedures are sufficient to ensure 
compliance. These regulations recognize that recipients that implement 
single-sex education will have differing objectives addressing 
differing student populations and that requiring a particular data set 
in the regulations could be both over-inclusive and under-inclusive. 
The Department has authority to access recipient records and other 
sources of information to determine compliance.\19\ Recipients have an 
ongoing responsibility to maintain compliance with Title IX and these 
regulations.\20\ Additionally, the amended regulations require a 
recipient to periodically conduct self-evaluations. If students and 
their parents believe there has been a violation of these regulations, 
they may file a complaint alleging discrimination under the recipient's 
grievance procedures.\21\ Students, parents, and third parties may also 
file complaints with the Department's Office for Civil Rights (OCR) if 
they believe discrimination in violation of these regulations has 
occurred. See, e.g., 34 CFR 100.7(b), (c), and (d), which are 
incorporated by reference in 34 CFR 106.71. In addition, OCR has 
authority to conduct periodic compliance reviews of recipients to 
ensure compliance.\22\ If OCR finds that a recipient has failed to 
comply with the Title IX regulations, OCR will negotiate with the 
recipient to secure compliance by voluntary means, and will take action 
to enforce \23\ if voluntary compliance cannot be achieved.
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    \19\ Section 106.71, incorporating by reference 34 CFR 100.6(c).
    \20\ Section 106.4.
    \21\ Section 106.8(b).
    \22\ Section 106.71, incorporating 34 CFR 100.7.
    \23\ Enforcement options include commencement of proceedings to 
terminate Federal funds administratively or referral to the 
Department of Justice for judicial enforcement. 20 U.S.C. 1682.
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    Changes: None.
4. Effect on Other Issues
    Comments: Some commenters expressed concern that additional 
flexibility for single-sex education might result in a reversion to 
sex-based stereotypes or roles. Some commenters indicated concern that 
single-sex education may have negative effects on socialization of 
children. Another commenter was concerned that recipients might not be 
aware that the amendments do not affect Federal law that prohibits 
recipient employers from making job assignments on the basis of sex.
    Discussion: With respect to commenters who expressed concern that 
increased flexibility to provide single-sex education might result in a 
reversion to sex-based stereotypes or roles, the regulations establish 
substantive and procedural requirements to ensure nondiscrimination. 
The regulations make it clear that a recipient's failure to have a 
justification, i.e., an important objective and a substantial 
relationship between the important objective and the sex-based means to 
further that objective, that is genuine would be sex discrimination. 
Thus, the regulations also make it clear that a recipient's use of 
overly broad sex-based

[[Page 62534]]

generalizations in connection with offering single-sex education would 
be sex discrimination. With respect to commenters who were concerned 
about the effect of single-sex education on the socialization of 
students, we reiterate that these regulations do not require single-sex 
education. Rather, they permit a recipient that has determined that 
single-sex education may be beneficial for some portion of its student 
population to offer single-sex education consistent with the 
requirements in these regulations.
    These regulations do not change the prohibitions on sex 
discrimination in employment, or any other area not specifically 
addressed in these amendments, in the Title IX regulations. Among other 
things, the Title IX regulations prohibit recipients from making job 
assignments on the basis of sex, Sec.  106.51(b)(4), and from 
classifying jobs as being for males or females, Sec.  106.55(a). Both 
of these provisions would prohibit schools from assigning teachers to 
single-sex classes based on their sex.
    Changes: None.
5. Important Objective (Sec.  106.34(b)(1)(i))
    Comments: Some commenters objected to the description, in the 
preamble to the proposed regulations, of the recipient's objective for 
establishing a single-sex class as being an important ``educational'' 
objective because they perceived that the educational objective 
requirement imposed a lesser standard than the important 
``governmental'' objective requirement.
    Discussion: The same Title IX nondiscrimination standards apply to 
classes, whether public or private recipients operate them. We used two 
terms, ``important educational objective'' and ``important governmental 
objective,'' in recognition of the fact that the regulatory provisions 
on single-sex classes apply to both private and public recipients. 
Recipients that are public actors, such as school districts, must have 
an important governmental objective to use any sex-based classification 
for the purposes of the Equal Protection Clause. Accordingly, for 
public recipients the same important governmental objective that would 
satisfy the requirements of the Equal Protection Clause will satisfy 
this portion of the regulations for the purposes of Title IX. Private 
recipients are not subject to the Equal Protection Clause because they 
are not governmental agencies. Thus, it is not appropriate to describe 
the objective for private recipients as an important ``governmental'' 
objective. However, with respect to single-sex classes, unlike single-
sex schools, the same demanding standards apply under Title IX for both 
public and private recipients. Thus, the regulations impose a Title IX 
requirement on private recipients that is analogous to the requirement 
for public recipients that they base any single-sex class on an 
``important governmental objective.'' The analogous requirement for 
private recipients is that they must base any single-sex class on an 
``important educational objective.'' In addition, because some 
commenters perceived that the reference to an important ``educational'' 
objective was a lesser standard than important ``governmental'' 
objective, we have added the term ``important'' to modify the term 
``objective'' in the regulatory language in Sec.  106.34(b)(1)(i).
    Changes: The term ``important'' has been added to modify the term 
``objective'' in Sec.  106.34(b)(1)(i).
6. Diversity Objective (Sec.  106.34(b)(1)(i)(A))
    Comments: Some commenters objected to the diversity of educational 
options rationale for single-sex classes. Some of these commenters 
expressed the view that providing diverse educational options was not 
an important governmental interest for the purposes of the 
constitutional test for sex-based classifications. Some commenters 
stated that there is not an important governmental interest in a sex-
based educational option as a diverse option without a requirement that 
the recipient demonstrate that the single-sex option advances 
educational goals, because otherwise the single-sex nature of the class 
would always be justified as substantially related to achievement of 
the objective, which is circular.
    Some commenters argued that implementation of diversity of 
educational options was an impermissible justification for single-sex 
classes because it might permit classes to be based on sex-based 
stereotypes or overly broad generalizations about the different 
talents, capacities, or preferences of either sex.
    Discussion: The Department continues to believe that, for the 
purposes of justifying a single-sex class under Title IX, a recipient 
can have an important governmental or educational objective 
evenhandedly to provide the opportunity to choose among diverse 
educational opportunities, provided that the single-sex nature of the 
class is substantially related to achieving that important objective. 
Although the Supreme Court has not decided the specific issue of 
whether this objective is an important governmental or educational 
objective for the purposes of justifying a sex-based classification 
under either Title IX or the Equal Protection Clause, the Court has 
suggested it would uphold the evenhanded provision of single-sex public 
educational opportunities, among a diversity of educational 
opportunities.\24\
---------------------------------------------------------------------------

    \24\ In considering admissions policies at the postsecondary 
level, the Court stated that ``we do not question the State's 
prerogative evenhandedly to support diverse educational 
opportunities.'' Virginia, 518 U.S. at 534, n.7. Responding to the 
Virginia Military Institute's defense that its male-only admissions 
policy was established and maintained to further a State policy of 
diversity, the court recognized that the reality that ``single-sex 
education affords pedagogical benefits to at least some students'' 
was uncontested in the litigation and that ``it is not disputed that 
diversity among public educational institutions can serve the public 
good.'' 518 U.S. at 535. See also Virginia, 518 U.S. at 564 (Chief 
Justice Rehnquist, concurring.)
---------------------------------------------------------------------------

    Given that Title IX encompasses broad nondiscrimination 
requirements, with narrow statutory exceptions,\25\ our intent is to 
establish regulatory exceptions for single-sex classes consistent with 
the statutory approach. We have clarified that a recipient's evenhanded 
provision of single-sex classes for the purpose of improving 
educational achievement of its students, through a recipient's overall 
established policy to provide diverse educational opportunities 
consistent with the requirements of these regulations meets the 
nondiscrimination requirements of Title IX.
---------------------------------------------------------------------------

    \25\ Jackson v. Birmingham Board of Education, 544 U.S. 167, 175 
(2005).
---------------------------------------------------------------------------

    In this regard, subject to the requirements of these regulations, 
some recipients might determine that the diversity of educational 
opportunities they provide to students would appropriately include 
providing single-sex opportunities in addition to coeducational 
opportunities.\26\ The regulations also require that the single-sex 
nature of any class offered pursuant to this objective must be 
substantially related to achievement of the objective.\27\
---------------------------------------------------------------------------

    \26\ For example, a recipient may seek to achieve an educational 
benefit for its students such as improvement in class work.
    \27\ For example, a recipient may have evidence that some boys 
and girls show educational improvement in single-sex classes during 
their adolescent years.
---------------------------------------------------------------------------

    The purpose of providing diverse educational opportunities is to 
engage parents in the education of their children and students in their 
own education with the goal of improving student outcomes. This will 
provide parents the opportunity to choose single-sex classes as well as 
other diverse opportunities because they

[[Page 62535]]

believe that these classes will help their children. In support of this 
objective and to further bolster the connection between the diversity 
justification and the legitimate interest in providing diverse 
educational opportunities, the final regulations clarify that the 
provision of single-sex classes must be pursuant to a recipient's 
established policy of offering diverse educational opportunities. This 
means that the range of choices offered to students and parents is not 
limited to single-sex schools and classes and coeducational schools and 
classes. A school or school district may not simply establish a single-
sex class and declare that the class by definition promotes diversity 
and is therefore consistent with these regulations. This ensures that a 
single-sex class in fact must be related to the important objective of 
improving educational achievement of its students, through a 
recipient's overall established policy to provide diverse educational 
opportunities.
    At the school district level examples of diverse educational 
opportunities that a recipient might offer as part of an overall 
established policy include charter schools, magnet schools, 
coeducational schools, single-sex schools, coeducational schools that 
offer both coeducational and single-sex classes, or other forms of 
public school opportunities. At the school level, this policy may 
include a range of elective classes or the opportunity to take classes 
at other schools.
    A recipient's justification, i.e., an important objective and a 
substantial relationship between the important objective and the sex-
based means to further the objective, must be genuine. Thus, recipients 
are prohibited from determining which classes to offer on a single-sex 
basis or providing single-sex classes on the basis of overly broad 
generalizations about the different talents, capacities, or preferences 
of either sex. However, to the extent that a recipient offers single-
sex classes, consistent with the requirements of these regulations, 
among its diverse educational opportunities, these regulations 
recognize that a parent or guardian may make an individualized decision 
to select from those opportunities regarding enrollment of his or her 
child.
    Changes: We have revised Sec.  106.34(b)(1)(i)(A) to clarify that 
single-sex classes offered under this objective are offered to improve 
educational achievement of its students, through an overall established 
policy of providing diverse educational opportunities.
7. Needs Objective (Sec.  106.34(b)(1)(i)(B))
    Comments: Numerous commenters questioned, on a variety of grounds, 
whether the amendments permitting single-sex classes to address 
particular, identified educational needs met the requirements of Title 
IX or met the test for sex-based classifications under the Equal 
Protection Clause. Numerous commenters expressed concern that the 
regulations did not require a recipient to articulate the educational 
benefit that it would be trying to achieve pursuant to the particular, 
identified educational needs objective or to produce evidence that the 
class would achieve the benefit described in the objective. Numerous 
commenters indicated that the proposed regulations did not require a 
recipient to compile evidence that the single-sex nature of its class 
is substantially related to the particular, identified educational need 
or educational benefit the recipient seeks to provide. Several 
commenters were concerned that recipients would establish single-sex 
classes based on administrative convenience.
    Commenters also objected to the implementation of the particular 
educational need objective for single-sex classes because it might 
permit classes to be based on sex-based stereotypes or overly broad 
generalizations about the different talents, capacities, or preferences 
of either sex.
    Discussion: The Supreme Court has not decided the issue of whether 
the particular, identified educational needs objective is an important 
governmental or educational objective for the purposes of justifying a 
sex-based classification under either Title IX or the Equal Protection 
Clause. However, the Court has indicated in Equal Protection Clause 
decisions that an array of ``important objectives'' can support sex-
based classifications, including ``to advance full development of the 
talent and capacities of our Nation's people.'' \28\ We believe that a 
recipient's evenhanded provision of single-sex classes to meet the 
particular, identified educational needs of its students in order to 
improve educational outcomes for its students is consistent with the 
objective found by the Court of ``advance[ment of] full development of 
the talent and capacities of our Nation's people.'' Thus, we continue 
to believe that meeting the particular, identified educational need of 
students is an important governmental or educational objective for 
recipients for the purposes of Title IX, and that, if single-sex 
classes are evenhandedly implemented pursuant to this objective and 
consistent with the safeguards in these amended regulations, they will 
meet the nondiscrimination requirements of Title IX.\29\
---------------------------------------------------------------------------

    \28\ Virginia, 518 U.S. at 533 (internal quotations omitted; 
citations omitted). See also Hogan, 458 U.S. at 728 (finding that in 
limited circumstances, sex-based classifications can be justified.)
    \29\ See Virginia, 518 U.S. at 534, n.7.
---------------------------------------------------------------------------

    The regulations require a recipient to evenhandedly identify the 
particular educational needs of students of both sexes. A student's 
particular, identified educational need is evidenced by limited or 
deficient educational achievement.\30\ After the needs of its students 
have been evenhandedly identified, a recipient then evenhandedly 
determines how to meet those needs. This determination must be made on 
a nondiscriminatory basis and should include nondiscriminatory 
consideration of whether a single-sex class would meet the particular 
needs identified for its male and female students. Establishment of a 
single-sex class requires a determination, based on an analysis of 
evidence, that the single-sex nature of the class would be 
substantially related to the achievement of a recipient's important 
objective of meeting the particular, identified educational needs of 
its students. Administrative convenience cannot justify sex-based 
classifications under Title IX.\31\ As discussed previously regarding 
single-sex classes, to provide the opportunity to choose among diverse 
educational opportunities, under Title IX, a recipient's justification, 
i.e., an important objective and a substantial relationship between the 
important objective and the sex-based means used to further that 
objective, must be genuine and cannot be based on overly broad 
generalizations about the different talents, capacities, or preferences 
of either sex.\32\
    Changes: We have made a nonsubstantive revision to Sec.  
106.34(b)(1)(i)(B) to change the term ``meeting those needs'' to 
``achieving that objective'' in order to reflect the language used by 
the Supreme Court in Virginia. Our previous language was intended to 
convey this concept.
---------------------------------------------------------------------------

    \30\ For example, limited educational achievement may be shown 
when students are not taking higher level courses; deficient 
educational achievement may be shown when students have remedial 
needs.
    \31\ See Wengler v. Druggists Mutual Insurance Company, 446 U.S. 
142, 151-52 (1980)(citing cases); Frontiero v. Richardson, 411 U.S. 
677, 689-90 (1973).
    \32\ See Virginia, 518 U.S. at 533. See also Hogan, 458 U.S. at 
726; Craig v. Boren, 429 U.S. 190, 198 (1976) (holding that sex 
cannot be used as a proxy for other more germane bases of 
classification.)

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

[[Page 62536]]

8. Social Needs (Sec.  106.34(b)(1)(i)(B))
    Comments: Two commenters responded to OCR's invitation for comments 
on whether there were additional important governmental or educational 
objectives that could be the basis for single-sex classes that should 
be incorporated into the final regulations. They proposed to add as an 
important objective one that addresses social problems affecting 
students, i.e., social needs. The types of social needs they mentioned 
included pregnancy, discipline problems, drug or alcohol abuse, 
delinquency, and criminal activity.
    Discussion: We recognize that a recipient's educational mission may 
legitimately extend beyond strictly academic objectives and outcomes, 
that their classes may provide social benefits, in addition to academic 
benefits, to students, and that positive social outcomes for students 
can have a positive effect on their educational outcomes. Thus, it may 
be consistent with a recipient's broad educational mission to provide 
classes and extracurricular activities to meet the types of social 
needs described by these commenters. We interpret the regulations 
pertaining to a recipient's important objective to meet particular, 
identified educational needs as already covering the types of social 
needs described by these commenters. For example, under the educational 
needs objective a school district that has high school students who are 
pregnant or are parents may determine that it is important to help 
students address a related particular, identified need, and may offer a 
single-sex class \33\ to meet that need consistent with these 
regulations as long as the single-sex nature of the class is 
substantially related to the objective and the other requirements of 
Sec.  106.34(b) are met. For this reason, it is unnecessary to change 
the regulations pertaining to a recipient's important objective to add 
a separate social needs objective.
---------------------------------------------------------------------------

    \33\ Compare with Sec.  106.40(b)(1) and (3), regarding pregnant 
students.
---------------------------------------------------------------------------

    Changes: None.
9. Evenhanded Implementation (Sec.  106.34(b)(1)(ii))
    Comments: In the preamble to the proposed regulations, we invited 
specific comments on whether OCR needs more information on how to 
assess if a recipient is implementing its objective in an evenhanded 
manner. Commenters indicated that they found the evenhanded 
implementation standard vague and subjective and found that it did not 
provide sufficient guidance.
    Discussion: Under Title IX, subject to the other requirements of 
these regulations, evenhanded \34\ implementation of the recipient's 
important objective means that a recipient that offers single-sex 
classes in connection with achieving its important objective must 
provide equal educational opportunity to students regardless of their 
sex, with the end result that it must provide substantially equal 
classes.\35\
---------------------------------------------------------------------------

    \34\ In Virginia, 518 U.S. at 534, n.7, the Court noted that 
briefs submitted by amici argued that ``diversity in educational 
opportunities is an altogether appropriate governmental pursuit and 
that single-sex schools can contribute importantly to such 
diversity,'' and the Court stated: ``We do not question the 
Commonwealth's prerogative evenhandedly to support diverse 
educational opportunities.'' The Court indicated that its decision 
addressed only the facts presented by the Virginia Military 
Institute's program, a unique educational opportunity available only 
at one public institution for students of one sex.
    \35\ Virginia, 518 U.S. at 554 (Virginia failed to show 
``substantial equality in the separate educational opportunities'' 
offered in the two institutions).
---------------------------------------------------------------------------

    A recipient's important objective may be providing diverse 
educational opportunities to students pursuant to Sec.  
106.34(b)(1)(i)(A). That choice of diverse educational opportunities, 
including the single-sex or coeducational class opportunity, must be 
provided evenhandedly to male and female students. In this regard, 
evenhanded implementation of single-sex opportunities requires an 
evenhanded assessment of what to offer. This means that the recipient 
must determine, in a manner that provides equal educational opportunity 
to male and female students, which classes in which subjects should be 
offered as a single-sex opportunity and to whom (i.e., does it have an 
obligation to offer a particular single-sex class to students of both 
sexes or is it permissible to offer it to students of one sex only; see 
the discussion in subsequent paragraphs), and then offer those classes 
evenhandedly to students. A recipient may collect pre-enrollment 
information from its student and parent populations in an evenhanded 
manner as part of its determination of the types of classes in which 
students would enroll. In a school in which male and female students 
sought to enroll in single-sex classes in the same subjects, the 
recipient would be required to accommodate them evenhandedly, absent a 
non-discriminatory reason, which would result in male and female 
students being provided single-sex classes in the same subjects.
    If a recipient's important objective is meeting the particular, 
identified educational needs of students pursuant to Sec.  
106.34(b)(1)(i)(B), evenhanded implementation requires the recipient's 
unbiased assessment, based on evidence, of the educational needs of 
students of both sexes within a particular setting. After the needs of 
students have been identified, the recipient then determines how to 
meet those needs on an evenhanded basis. The regulations permit a 
recipient to consider in an evenhanded manner whether a single-sex 
class would meet the particular, identified educational needs for male 
or female students, or for students of both sexes, and whether the 
single-sex nature of such a class would be substantially related to the 
achievement of the objective of meeting the particular, identified 
need.
    For example, if a recipient has evidence that providing a single-
sex class in a particular subject would meet the particular, identified 
educational needs of students of one sex and that the single-sex nature 
of the class is substantially related to achievement of the objective, 
(i.e., meeting the needs of students of that sex), subject to the other 
requirements of these regulations, the recipient may offer that class 
on a single-sex basis to students of that sex. If the recipient also 
has evidence that providing a single-sex class in that same subject 
would meet the particular, identified educational needs of students of 
the other sex and that the single-sex nature of the class would be 
substantially related to meeting those needs, then the requirement that 
the recipient implement its objective evenhandedly would require that, 
absent a non-discriminatory reason, it provide a single-sex class in 
that subject to students of the other sex as well. On the other hand, 
if a recipient has evidence that providing a single-sex class in that 
subject would not meet the particular, identified needs of students of 
the other sex or that the single-sex nature of the class would not be 
substantially related to achievement of that objective, the recipient 
is not required to provide a single-sex class to students of the other 
sex, but would be required to offer a substantially equal coeducational 
class in that subject. However, although a single-sex class would not 
be required in that subject, evenhanded implementation of the 
recipient's objective does require the recipient to determine, based on 
its assessment of educational needs of students, whether a class in 
another subject should be offered on a single-sex

[[Page 62537]]

basis to meet the particular, identified needs of students of the 
excluded sex.
    Changes: None.
10. Voluntary Participation (Sec.  106.34(b)(1)(iii))
    Comments: Commenters recommended that we clarify the regulations to 
require clearly that student participation in single-sex classes must 
be voluntary. Some commenters were concerned, unless the regulations 
were clear about this requirement, that in situations in which many 
students of one sex voluntarily chose a single-sex class that a 
recipient might, for administrative convenience, assign or attempt to 
``steer'' students of the other sex to a single-sex class, even if they 
wanted to enroll in a coeducational class. A commenter recommended that 
the regulations be revised to require that recipients notify parents or 
guardians of all their options, including the option of enrolling their 
child in a single-sex class.
    Discussion: The proposed regulations in Sec.  106.34(b)(1)(ii) were 
intended to require recipients to offer single-sex classes only on a 
completely voluntary basis, by requiring a recipient to provide a 
coeducational class in the same subject, in conjunction with the 
requirement in Sec.  106.34(a) that a recipient may not require 
participation in classes on the basis of sex. We agree with commenters 
that the proposed regulations may not have been as clear as we 
intended, and we have revised the regulations to require clearly that 
participation in single-sex classes must be completely voluntary.
    Unless a recipient offers enrollment in a coeducational class in 
the same subject, enrollment in a single-sex class is not voluntary. In 
order to ensure that participation in any single-sex class is 
completely voluntary, if a single-sex class is offered, the recipient 
is strongly encouraged to notify parents, guardians, and students about 
their option to enroll in either a single-sex or coeducational class 
and receive authorization from parents or guardians to enroll their 
children in a single-sex class.
    Changes: We have added new regulatory language in Sec.  
106.34(b)(1)(iii), clearly requiring that student participation in a 
single-sex class must be completely voluntary. For the sake of clarity, 
we have also deleted the reference in paragraph (b) of Sec.  106.34 to 
the requirements of paragraph (a) of that section.
11. Coeducational Class (Sec.  106.34(b)(1)(iv))
    Comments: Some commenters expressed concern that if a recipient 
provides a single-sex class for students of one sex, the regulations 
always require a coeducational class, but they do not always require a 
single-sex class for students of the other sex. Some commenters argued 
that it would be a denial of equal opportunity to provide a single-sex 
class or other benefit, service, or opportunity for students of one 
sex, but not for the other. Some commenters expressed the view that a 
recipient could legally provide a single-sex class for students of one 
sex, without a corresponding single-sex class for students of the other 
sex, only if the purpose was to remediate discrimination.
    Discussion: The regulations always require a recipient that offers 
a single-sex class to offer a substantially equal coeducational class 
in the same subject to all students, including students excluded from 
the single-sex class. A recipient must provide single-sex classes in an 
evenhanded manner when seeking to fulfill its important objectives 
either to provide a diversity of educational opportunities or to 
address particular, identified educational needs.
    Thus, if a recipient's procedure includes obtaining information 
from parents and students about interest in enrolling in potential 
single-sex classes in order to provide a diversity of educational 
opportunities, the recipient must include students of both sexes and 
their parents. Similarly, if a recipient is seeking to address 
educational needs of students, the recipient must treat male and female 
students in an evenhanded manner when identifying particular 
educational needs, determining if a single-sex class would meet those 
needs, and meeting the educational needs of both sexes. A recipient may 
not decide simply to offer single-sex classes only to students of one 
sex, but rather may do so only if it can show (1) students of the other 
sex are not interested in having the option to voluntarily enroll in a 
single-sex class if the recipient is seeking to further its important 
objective of providing diverse educational opportunities, or (2) 
students of the other sex do not have educational needs that can be 
addressed by a single-sex class if the recipient is seeking to meet the 
educational needs of its students. Thus, under these circumstances, the 
recipient would not be denying students of the other sex a 
substantially equal class by providing them only a substantially equal 
coeducational class in the same subject as the single-sex class.
    Additionally, OCR will examine recipients that provide 
significantly more single-sex opportunities to students of one sex than 
to students of the other sex to determine if this is the result of sex 
discrimination.
    Changes: We have added to Sec.  106.34(b)(1)(iv) the words ``to all 
other students, including students of the excluded sex'' to clarify the 
scope of this requirement.
12. Private Schools (Sec.  106.34(b)(1)(iv))
    Comments: Two commenters sought a revision to the regulations to 
provide an exemption, under certain circumstances, for coeducational 
recipient private schools from the requirement that they provide a 
substantially equal coeducational class if they provided a single-sex 
class to students of both sexes.
    Discussion: Because all recipients are subject to Title IX and 
because a substantially equal coeducational class option for students 
is essential to prevent involuntary assignment to a single-sex class on 
the basis of sex, Title IX does not permit a categorical exception to 
this requirement. However, in some cases, parents of all students in a 
particular grade in a private school may provide their completely 
voluntary consent to the private school to offer a single-sex class 
with no coeducational class. If the parents of the affected students in 
a class in a private school enroll their children, or the students 
themselves enroll, in a single-sex class on a completely voluntary 
basis, and there are no students who would choose to enroll in a 
coeducational class in that subject, these regulations do not require 
the school to provide a coeducational class in that subject.
    Changes: None.
13. Substantially Equal Classes (Sec.  106.34(b)(1)(iv) and (b)(2))
    Comments: Some commenters stated that the regulations needed to 
state specifically that recipients are required to provide students of 
both sexes equal educational opportunities. Some commenters objected to 
the term ``substantially equal'' in the proposed regulations because it 
might be interpreted as a lower standard than a requirement of equal 
educational opportunity. Some commenters stated that the term 
``substantially equal'' was too vague and that recipients would not 
understand what was required for compliance.
    Discussion: Section 106.34(b)(1)(ii) of the proposed regulations 
provided that a recipient that offered a single-sex class to students 
of one sex was required to offer a substantially equal coeducational 
class in the same subject, and Sec.  106.34(b)(2) provided that a 
recipient that offered a single-sex class to students of one sex also 
may be required

[[Page 62538]]

to offer a substantially equal single-sex class for the excluded sex. 
Section 106.34(b)(3) of the proposed regulations described factors that 
the Department would consider in comparing classes.
    We disagree with the comments that the substantially equal standard 
for comparing and measuring classes is a lower standard or is too 
vague. The substantially equal standard in these regulations is 
informed by, and consistent with, the nondiscrimination requirements of 
the Equal Protection Clause. The Supreme Court compared two single-sex 
postsecondary institutions and used the term ``substantial equality'' 
in measuring whether the standards of the Equal Protection Clause were 
met.\36\ This standard ensures that students who are excluded from a 
single-sex class will be provided a class with tangible and intangible 
features substantially equal to the corresponding features in the 
single-sex class. We recognize, however, that in comparing classes, a 
recipient may provide students with a substantially equal class even if 
the classes are not identical in every respect.
---------------------------------------------------------------------------

    \36\ Virginia, 518 U.S. at 554 (citing Sweatt v. Painter, 339 
U.S. 629, 633 (1950)).
---------------------------------------------------------------------------

    Changes: None.
14. Factors (Sec.  106.34(b)(3))
    Comments: Some commenters suggested that the proposed list of 
factors to be used in determining whether a class meets the 
requirements of Sec.  106.34(b)(1)(iv) or (b)(2) should include 
intangible factors because the Supreme Court considered intangible 
features, as well as tangible features, in comparing single-sex 
educational institutions to determine if Equal Protection standards had 
been met. Some commenters recommended that additional factors be added 
to the list including educational methods, single-sex opportunities, 
factors that would capture sex-stereotyping, and motive for creating 
single-sex classes.
    Discussion: Section 106.34(b)(3) of the proposed regulations listed 
several factors that the Department proposed to consider in comparing 
classes and determining if a class provided to students of the excluded 
sex is substantially equal to the single-sex class. The list of 
factors, which was not intended to be exhaustive, included-- 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. Under the substantially equal standard, classes are not 
required to be identical, and there may be differences in factors that 
may be justified for legitimate, nondiscriminatory reasons or because 
the differences are not significant enough, alone or aggregated 
together, to constitute sex discrimination under these regulations. 
Alternatively, a substantial difference (or differences) of an 
unjustified nature in the benefits, treatment, services, or 
opportunities that constitute one factor in the respective classes, if 
significant enough, in and of itself, to cause the classes not to be 
substantially equal, is sex discrimination under these regulations. 
Also, when factors for determining substantial equality of the 
respective classes are considered in the aggregate, if there is a 
pattern of differences of an unjustified nature that favors one class 
with regard to the benefits, treatment, services, or opportunities 
provided to students to the extent that the pattern of differences is 
significant enough to cause the classes not to be substantially equal, 
this pattern constitutes sex discrimination under these regulations. 
Because, as described in a subsequent section on schools, commenters 
who objected to a provision in the proposed regulations regarding the 
aggregate approach for assessing the substantial equality in schools 
misunderstood it, we have clarified the regulatory language for both 
classes and schools by adding the term ``either individually or in the 
aggregate as appropriate.''
    The Supreme Court considered intangible and tangible features in 
comparing postsecondary institutions for the purposes of the Equal 
Protection Clause.\37\ The Department will consider all relevant 
factors in determining whether classes meet the requirements of Sec.  
106.34(b)(1)(iv) or (b)(2) and agrees that, for the purposes of 
assessing compliance with Title IX, intangible features should be 
considered whenever relevant.
---------------------------------------------------------------------------

    \37\ Virginia, 518 U.S. at 554, 557.
---------------------------------------------------------------------------

    Although we have not listed other factors suggested by commenters, 
the Department will consider all relevant factors in any case 
investigation. The list of factors is not exhaustive. We note that some 
aspects of single-sex education that commenters suggested be included 
in the list of factors will be considered in connection with compliance 
with other parts of these regulations.
    Although we did not receive comments from the public, we are adding 
geographic accessibility as a factor pertaining to substantial equality 
of classes. In most cases a recipient's substantially equal classes for 
a particular school will be in the same school building, and geographic 
accessibility will not be relevant to substantial equality. There are, 
however, situations in which geographic accessibility will be relevant 
for classes. For example, if a recipient operates a consortium of 
schools whereby students at three neighboring high schools take some 
classes at the school to which they are assigned on the basis of their 
residence and are permitted to take certain other classes, which are 
not offered at their assigned school, at one of the neighboring 
schools, location, i.e., geographic accessibility, of the classes in 
the same subject, would be relevant to the issue of substantial 
equality. The list of factors described in the regulations is not 
exhaustive. However, because the proposed regulations listed geographic 
accessibility as a factor for schools, but not for classes, it is 
important to ensure that recipients have notice that geographic 
accessibility is also a factor for classes.
    Changes: We have revised the regulatory language to clarify the 
aggregate approach in assessing substantial equality in classes by 
adding the clarifying term, ``either individually or in the aggregate 
as appropriate.'' Section 106.34(b)(3) of the final regulations 
provides in relevant part: ``Factors the Department will consider, 
either individually or in the aggregate as appropriate, in determining 
whether classes or extracurricular activities are substantially equal 
include. * * *''
    We have revised the list of factors in Sec.  106.34(b)(3) to be 
considered in comparing classes to include ``intangible features'' and 
``reputation of faculty'' as an example of an intangible feature. We 
have also revised the list of factors to include ``geographic 
accessibility.''
15. Periodic Evaluations for Classes (Sec.  106.34(b)(4))
    Comments: In the preamble to the proposed regulations we invited 
specific comments as to how often a recipient should be required to 
conduct periodic evaluations. Comments ranged from yearly, biennially, 
or variable depending on the single-sex classes offered. Of the four 
comments received on this issue, two commenters recommended biennial 
evaluation. In addition, commenters were concerned that the regulations 
did not require the evaluation to ensure against reliance on overly 
broad generalizations about the different preferences of either sex 
consistent with Equal Protection Clause requirements.

[[Page 62539]]

    Discussion: Recipients have an ongoing responsibility to comply 
with the nondiscrimination requirements of the Title IX regulations. 
These regulations require recipients to conduct periodic evaluations to 
ensure that their single-sex classes are based on justifications, i.e., 
an important objective and a substantial relationship between the 
important objective and the sex-based means used to further that 
objective, that are genuine and that do not rely on overly broad 
generalizations about either sex. Part of the periodic evaluation 
requirement involves an assessment of the degree to which the 
recipient's important objective has been achieved and an assessment of 
whether the single-sex nature of the class is substantially related to 
achievement of the recipient's objective. This procedural provision 
requires a recipient to evaluate its own classes so that it can take 
appropriate corrective action if it identifies compliance problems. We 
have determined that recipients must conduct evaluations at least every 
two years in order to meet this procedural obligation. Recipients may 
evaluate single-sex classes more often because the substantive 
obligation to comply is ongoing or because its own findings have 
identified issues that may require a more frequent evaluation. In 
addition, if the Department investigates a recipient and identifies 
compliance problems, we may require the recipient to conduct more 
frequent evaluations. Because Sec.  106.71 of the Title IX regulations, 
which incorporates the requirements of 34 CFR 100.6(b) and (c), 
requires generally that recipients keep records to show that they are 
in compliance with civil rights requirements and requires them to 
provide the Department access to information relevant to compliance 
determinations, recipients should have appropriate records to show 
compliance with the periodic evaluation requirement.
    We agree that under Title IX, single-sex classes cannot be based on 
overly broad generalizations about the talents, capacities, or 
preferences of either sex. As discussed previously, recipients must 
make fact-specific determinations.
    Changes: We have revised Sec.  106.34(b)(4)(i) to add ``or 
preferences'' and to delete ``male and female students'' and substitute 
in its place ``either sex.'' We have also added the term ``important'' 
to clarify that the evaluation must ensure that the single-sex class or 
extracurricular activity is substantially related to the recipient's 
important objective. In addition we have revised Sec.  106.34(b)(4) to 
provide that a recipient must conduct evaluations of its classes at 
least every two years (Sec.  106.34(b)(4)(ii)) in order to comply with 
the procedural requirement for periodic evaluations (Sec.  
106.34(b)(4)(i)).
16. Extracurricular Activities (Sec.  106.34(b)(1) Through (5))
    Comments: None.
    Discussion: Section 106.34(b)(1) through (5) applies to 
extracurricular activities, as well as classes.
    Changes: We have added the term ``extracurricular activities'' 
throughout Sec.  106.34(b)(1) through (5) of the regulations to clarify 
that these provisions apply both to classes and extracurricular 
activities.
17. Athletics
    Comments: Some commenters objected to the coverage of 
extracurricular activities in the proposed regulations because they 
perceived that the amendments would be applied to athletics, which 
would result in undermining the Department's longstanding Title IX 
regulations requiring equal athletic opportunity for students of both 
sexes and would permit sex discrimination in athletics.
    Discussion: The proposed regulations defined ``classes,'' for the 
purposes of proposed Sec.  106.34(b), to include ``all education 
activities provided for students by a school or in a school'' (proposed 
Sec.  106.34(b)(5)), and this definition was intended to cover 
extracurricular activities, as well as classes. It was not, however, 
intended to affect or change the longstanding Title IX requirements 
applicable to athletics, including interscholastic, club, or intramural 
athletics.\38\
---------------------------------------------------------------------------

    \38\ Sections 106.41 and 106.37(c).
---------------------------------------------------------------------------

    Changes: Because some commenters interpreted the proposed 
definition as extending the requirements in Sec.  106.34(b)(1) through 
(4) to athletics, we have revised Sec.  106.34(b)(5) in the final 
regulations. We have determined that rather than define ``class'' and 
``extracurricular activity,'' it is clearer and more useful to include 
a provision on the scope of coverage of paragraph (b)(1) through (4) of 
Sec.  106.34. We have revised Sec.  106.34(b)(5) to provide that 
paragraph (b)(1) through (4) applies to classes and extracurricular 
activities provided by a recipient covered by Sec.  106.34(b)(1) either 
directly or through another entity and to clarify that paragraph (b)(1) 
through (4) does not apply to interscholastic, club, or intramural 
athletics, which are subject to the provisions of Sec. Sec.  106.41 and 
106.37(c).
18. Physical Education Classes
    Comments: Commenters objected to these amendments because they 
perceived that they would weaken the current Title IX regulatory 
standards pertaining to physical education classes in a manner that 
would permit sex discrimination. Commenters indicated that separation 
in physical activity should be based on differences in skill, size, or 
strength, rather than on the sex of the student. Some female commenters 
described how playing sports with boys had enhanced their sports 
skills.
    Discussion: The longstanding regulatory provision that permits 
recipients to separate students in physical education classes on the 
basis of ability is not affected by these amendments.\39\ Similarly, 
the regulatory exception that permits recipients to separate students 
by sex within physical education classes or activities during 
participation in contact sports \40\ is not affected by these 
amendments. The amended regulations provide a recipient the additional 
flexibility to offer single-sex classes, including physical education 
classes, if all the requirements of Sec.  106.34(b)(1) through (5) are 
met. These requirements, which are discussed in previous paragraphs, 
require a recipient that provides a single-sex class, including a 
physical education class, to provide substantially equal classes to 
students of both sexes. These requirements prohibit discrimination on 
the basis of sex, including physical education classes, which means 
that single-sex classes must be based on a justification, i.e., an 
important objective and a substantial relationship between the 
important objective and the sex-based means used to further the 
objective, that is genuine and not based on overly broad sex-based 
generalizations about either sex.
---------------------------------------------------------------------------

    \39\ Compare former Sec.  106.34(b) with Sec.  106.34(a)(2) of 
these final regulations.
    \40\ Compare former Sec.  106.34(c) with Sec.  106.34(a)(1) of 
these final regulations.
---------------------------------------------------------------------------

    Changes: None.
19. Legal Standards for Single-Sex Schools (Sec.  106.34(c)(1))
    Comments: In addition to the general concerns about legal standards 
discussed in previous paragraphs, some commenters had specific concerns 
about the legal standards applicable to the proposed regulations 
regarding single-sex schools. Some commenters objected to permitting 
any ``new'' single-sex schools (i.e., after the effective date of Title 
IX), citing the reasoning in a Federal district court decision, as 
contrary to congressional intent.

[[Page 62540]]

    A commenter objected to the proposed regulations on schools on the 
basis that sex-segregated schools violate the Equal Educational 
Opportunity Act of 1974 (EEOA),\41\ citing a Federal appellate court 
decision \42\ holding that a sex-segregated assignment plan violated 
the EEOA.
---------------------------------------------------------------------------

    \41\ 20 U.S.C. 1701 through 1721.
    \42\ United States v. Hinds County Sch. Bd., 560 F.2d 619 (5th 
Cir. 1977).
---------------------------------------------------------------------------

    Some commenters objected to the proposed provisions on schools 
because public recipients are subject to both Title IX and the Equal 
Protection Clause, but the regulatory requirements did not require 
constitutionally sufficient justifications for sex-based 
classifications.
    Discussion: The Title IX regulations have permitted single-sex 
nonvocational schools since the regulations were issued in 1975. Thus, 
it is not a change that these regulations continue to permit single-sex 
schools. Both the plain language of the statute and legislative intent 
support this interpretation. Section 901 of Title IX covers admissions 
only to certain types of educational entities named in the statute.\43\ 
Because nonvocational elementary and secondary schools are not among 
those listed, admission to these schools is not covered. The 
legislative history of Title IX shows that Congress was aware of the 
existence of public single-sex elementary and secondary schools and 
that Congress understood that, by exempting admissions to these schools 
from the general prohibitions, single-sex admissions policies could 
continue.\44\ Our longstanding and current interpretation that the 
Department is precluded from examining a recipient's justifications for 
offering single-sex schools is based on the plain language of Title IX 
and its legislative history. As the commenter pointed out, involuntary 
assignment to single-sex public schools violates the EEOA.
---------------------------------------------------------------------------

    \43\ 20 U.S.C. 1681(a)(1). The nondiscrimination provisions of 
section 901 of Title IX apply to admissions to institutions of 
vocational education, professional education, and graduate higher 
education, and to public institutions of undergraduate higher 
education.
    \44\ 118 Cong. Rec. 5804, 5807, 5812-13 (1972).
---------------------------------------------------------------------------

    Changes: We have made a nonsubstantive revision to Sec.  106.34(c) 
to add ``General Standard'' to the title of this provision to make it 
consistent with Sec.  106.34(b). We also revised the statement of the 
general standard for single-sex schools to align it more closely to the 
statute. Section 106.34(c)(1) requires, subject to an exception for 
certain charter schools, discussed in a later paragraph, a recipient 
that operates a public, nonvocational single-sex elementary or 
secondary school to provide a substantially equal single-sex school or 
coeducational school to students of the excluded sex.
20. Schools for Excluded Sex (Sec.  106.34(c)(1))
    Comments: Some commenters objected to amending the regulations to 
permit a recipient to offer a single-sex school to students of one sex 
and to offer either a coeducational or a single-sex school to students 
of the excluded sex, rather than requiring that excluded students also 
be offered a single-sex school. Commenters objected to this change in 
our previous interpretation of the Title IX statute. They stated that 
to provide students of one sex the opportunity to attend a single-sex 
school, but not to provide students of the other sex an equal 
opportunity to attend a single-sex school, is discriminatory treatment 
on the basis of sex in violation of the requirements of Title IX and 
the Equal Protection Clause.
    Discussion: The Title IX statute does not cover admissions to 
nonvocational elementary and secondary schools.\45\ We have determined 
that, by excluding these schools from the admissions coverage, Congress 
was not only permitting recipients to operate public schools with 
single-sex admissions policies without sanction under Title IX,\46\ but 
it also was permitting recipients to operate single-sex schools without 
requiring them also to provide a corresponding single-sex school for 
students of the excluded sex, again without sanction under Title IX. We 
no longer interpret Title IX to require that if a recipient offers a 
single-sex school for students of one sex, it must offer students of 
the other sex a corresponding single-sex school. The regulations now 
require, in Sec.  106.34(c)(1), that the recipient must provide a 
substantially equal school to students of both sexes,\47\ but the 
school may be a coeducational or single-sex school.
---------------------------------------------------------------------------

    \45\ 20 U.S.C. 1681(a)(1) (``in regard to admissions to 
educational institutions, this section shall apply only to 
institutions of vocational education, professional education, and 
graduate higher education, and to public institutions of higher 
education'').
    \46\ 118 Cong. Rec. 5804, 5807, 5812-13 (1972).
    \47\ Subject to the exception for certain public charter schools 
in Sec.  106.34(c)(2).
---------------------------------------------------------------------------

    Changes: None.
21. Substantially Equal Schools (Sec.  106.34(c)(1))
    Comments: Many commenters had the same concerns regarding the 
regulatory language in Sec.  106.34(c)(1) used to describe the standard 
for comparing and measuring schools as they had for classes. As 
discussed in previous paragraphs regarding requirements for classes, 
commenters were concerned that the term ``substantially equal,'' as 
used in the proposed regulations for comparing benefits provided to 
students, described a lower standard than the equal educational 
opportunity standard required by Title IX and the Equal Protection 
Clause.
    Discussion: Title IX does not cover admissions to nonvocational 
elementary and secondary schools. Title IX does require that a 
recipient that operates public schools must not provide a single-sex 
school to students of one sex and discriminate against students of the 
excluded sex with respect to the educational opportunities the 
recipient provides them in another school, regardless of whether the 
other school is coeducational or single-sex. Under the original Title 
IX regulations, if an LEA chose to provide a single-sex school, the 
standard for comparison of benefits and treatment provided to students 
in schools was described as ``comparable.'' Under the final regulations 
the standard of comparison for schools is described as ``substantially 
equal.''
    As discussed under the paragraphs on single-sex classes, we 
disagree with the comments that the substantially equal standard is a 
lower standard for comparing schools than is required under Title IX or 
the Equal Protection Clause. This standard ensures that students who 
are excluded from a single-sex school will be provided a school with 
tangible and intangible features substantially equal to the 
corresponding features in the single-sex school. We recognize, however, 
that in comparing two schools, a recipient may provide students with a 
substantially equal school even if the schools are not identical in 
every respect.
    Changes: None.
22. School Within a School (Sec.  106.34(c)(1) and (c)(4))
    Comments: None.
    Discussion: Section 106.34(c)(1) of the proposed regulations 
referred to a school or ``education unit.'' We explained in the 
preamble to the proposed regulations that ``education unit'' meant a 
``school within a school,'' which was a school located within another 
school. We believe that it is important for recipients to have this 
information included in the regulations.

[[Page 62541]]

    Changes: We have deleted the term ``education unit'' from Sec.  
106.34(c)(1) and added a new paragraph (4) that defines ``school'' to 
include ``school within a school'' and explains what we mean by a 
``school within a school.''
23. Limited Charter Schools Exception (Sec.  106.34(c)(2))
    Comments: Some commenters objected to the provision in the proposed 
regulations that would exempt nonvocational public single-sex charter 
schools that are single-school LEAs from the requirements that apply to 
other public schools. Many of these commenters stated that public 
charter schools, like other public schools that receive Federal funds, 
are subject to the requirements of Title IX and the U.S. Constitution. 
They believed that all single-sex public schools should be required to 
demonstrate an exceedingly persuasive justification for limiting 
admission to one sex. One commenter noted that recipients authorizing 
the operation of single-sex charter schools, as opposed to the 
individual schools themselves, are likewise subject to the 
constitutional and Title IX requirements. One commenter stated that the 
Department's rationale that it would be unduly burdensome to require 
single-sex charter schools that are single-school LEAs to create a 
single-sex charter school for students of the excluded sex was not a 
valid reason to excuse those schools from the constitutional 
requirements of the Equal Protection Clause.
    Discussion: The constitutional standard referenced in the comments 
is not a Title IX requirement. The Title IX statute does not cover 
admissions to nonvocational elementary and secondary schools.\48\ Given 
Congress' intent, OCR does not have the authority to require recipients 
to provide a justification for single-sex nonvocational elementary or 
secondary schools. Accordingly, the regulatory amendment regarding 
single-sex schools is consistent with Title IX. Of course, public 
schools are subject to constitutional requirements, including the Equal 
Protection Clause, which requires that a recipient demonstrate that its 
sex-based classification serves an important governmental objective and 
that the sex-based classification is substantially related to the 
achievement of that objective.
---------------------------------------------------------------------------

    \48\ 20 U.S.C. 1681(a)(1).
---------------------------------------------------------------------------

    With regard to public charter schools, it would be impracticable to 
require either chartering authorities, which are merely approving 
applications for--but are not operating--single-sex charter schools, or 
the groups of community leaders, developers, or parents who seek to 
establish a single-sex charter school that will be a single-school LEA 
under State law, to establish and operate an additional substantially 
equal school to meet the needs of the other sex. Because it would be 
unlikely that those groups would be able to create two substantially 
equal charter schools, absent the exception in Sec.  106.34(c)(2) those 
groups would be unable to establish a single-sex charter school. Title 
IX does not require such a rigid approach. On the other hand, any LEA 
that operates multiple schools, including charter schools, must comply 
with Sec.  106.34(c)(1). The notion of excepting certain types of 
schools from the Title IX requirements is not new. Pursuant to Sec.  
106.35 of the former regulations, private schools that received Federal 
assistance were permitted to operate single-sex schools without 
providing the excluded sex with a comparable school. The requirements 
of Sec.  106.34(c)(1) of these regulations do not apply to recipients 
that operate private, nonvocational elementary or secondary schools.
    Changes: We have made a nonsubstantive revision to describe more 
precisely the single-school LEAs that are entitled to this exception.
24. Chartering Authorities
    Comments: A commenter noted that a school board that serves as a 
chartering authority of public charter schools should not be found to 
have violated Title IX if it approves a charter school application for 
a single-sex charter school, but does not provide the resources to 
establish a single-sex school for students of the excluded sex. 
Additionally, the commenter suggested that the final regulations 
include a statement clarifying that Title IX does not obligate a 
chartering authority that is an LEA to approve an application for a 
single-sex charter school.
    Discussion: Title IX would require all chartering authorities that 
receive Federal financial assistance to review, and approve or reject, 
applications in a nondiscriminatory manner. Nothing in Title IX or 
these regulations requires that applications for single-sex charter 
schools be approved. Title IX simply requires that the same standards 
be applied to a proposed single-sex charter school, regardless of which 
sex the charter school proposes to serve. An LEA will be considered to 
be ``operating'' a charter school that is part of the LEA. Thus, if a 
recipient LEA chartering authority approves an application for a 
single-sex charter school that will be part of the LEA, the LEA must 
comply with the requirements of Sec.  106.34(c)(1) and must provide 
students of the excluded sex with a substantially equal single-sex 
school or coeducational school. As stated in the discussion of Sec.  
106.34(c)(2), however, if a chartering authority's role is merely 
approving an application for a single-sex charter school that is a 
single-school LEA, the chartering authority will not be required to 
provide the students of the excluded sex with a substantially equal 
school. State charter school laws govern whether a charter school will 
be a public school within the LEA or whether it will be a single-school 
LEA.
    Changes: None.
25. Factors (Proposed Sec.  106.34(c)(3)(i))
    Comments: Several commenters stated that the proposed list of 
factors used to compare schools must include intangible factors.
    Discussion: Readers should refer to the prior discussion of this 
issue under the classes section of this analysis.
    Changes: We have removed paragraph designation (i) from Sec.  
106.34(c)(3). With respect to the list of factors (in proposed Sec.  
106.34(c)(3)(i))), we have revised the regulations to include 
``intangible features'' and to list ``reputation of faculty'' as an 
example of an intangible feature on the non-exhaustive list of factors. 
Further changes with respect to the consideration of these factors 
(proposed Sec.  106.34(c)(3)(ii)) are discussed in the next section.
26. Aggregate Approach (Proposed Sec.  106.34(c)(3)(ii))
    Comments: Some commenters objected to the proposed ``aggregate'' 
approach \49\ for comparing the benefits and treatment provided to 
students in single-sex schools and the benefits and treatment provided 
to students excluded from those schools. Commenters were concerned that 
this approach would permit inequities between schools that would 
constitute discrimination on the basis of sex against the students in 
one of the schools in violation of Title IX and the U.S. Constitution. 
A commenter stated that the proposed aggregate approach would condone 
inequities between a single-sex and coeducational school as long as the 
inequities balanced in some unspecified way.
---------------------------------------------------------------------------

    \49\ The proposed amendments in Sec.  106.34(c)(3)(i) provided a 
non-exhaustive list of factors that the Department would consider in 
determining whether schools were substantially equal, and in Sec.  
106.34(c)(3)(ii) provided that ``this determination involves an 
assessment in the aggregate of the educational benefits provided by 
each school as a whole.''
---------------------------------------------------------------------------

    Discussion: Commenters misunderstood the aggregate approach

[[Page 62542]]

in the proposed regulations to permit inequities that would be 
prohibited by Title IX. This perception of the proposed provision was 
inconsistent with the intent of the proposed provision and of the 
substantial equality standard.
    We have revised the regulations to provide more clarity on the 
aggregate approach. The same regulatory language added in these final 
regulations to clarify the aggregate approach for assessing substantial 
equality of classes, Sec.  106.34(b)(3), has also been added to the 
regulatory language on assessing substantial equality of schools, and 
Sec.  106.34(c)(ii) of the proposed regulations has been deleted in the 
final regulations. For more information about assessments of 
substantial equality, readers should refer to the prior discussion in 
this analysis of how compliance with the requirement of substantial 
equality will be assessed for classes.
    Changes: Section 106.34(c)(3) has been revised to clarify the 
aggregate approach in assessing substantial equality of schools, by 
adding the term ``either individually or in the aggregate as 
appropriate'' so that the regulatory language now provides in relevant 
part: ``Factors the Department will consider, either individually or in 
the aggregate as appropriate, in determining whether schools are 
substantially equal include * * *.'' Section 106.34(c)(3)(ii) of the 
proposed regulations has been deleted and the section has been 
renumbered to reflect this change.
27. Periodic Evaluations
    Comments: Some commenters stated that the regulations should 
require recipients to periodically evaluate single-sex schools.
    Discussion: As discussed in previous paragraphs, we interpret the 
Title IX admissions exception for nonvocational elementary and 
secondary schools to prevent the Department from regulating the 
justifications for single-sex schools. For that reason we have not 
included a requirement for periodic evaluations, similar to the 
requirement for single-sex classes. Regardless of the lack of this 
additional procedural requirement for schools, recipients continue to 
be subject to the substantive requirements of Title IX and our Title IX 
regulations, and they continue to be subject to investigation if there 
is a complaint or compliance review.\50\ Recipients that voluntarily 
monitor their single-sex and coeducational schools for compliance with 
these regulations are in the best position to achieve compliance.
---------------------------------------------------------------------------

    \50\ 34 CFR 100.6(c); 34 CFR 100.7(a)(b). As discussed in 
previous paragraphs, public schools and school districts are also 
subject to the Equal Protection Clause.
---------------------------------------------------------------------------

    Changes: None.

Executive Order 12250

    Pursuant to Executive Order 12250, which provides for the Attorney 
General to review regulations implementing Title IX, the Attorney 
General has reviewed and approved these final regulations for 
publication.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of the order we have assessed 
the potential costs and benefits of this regulatory action.
    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.
    In assessing the potential costs and benefits of these final 
regulations, we have determined that the benefits of the regulations 
justify the costs.
    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 benefit of the final regulations is the expanded flexibility to 
provide single-sex schools, classes, or extracurricular activities, if 
they are desired. The final regulations do not require recipients to 
provide single-sex schools, classes, or extracurricular activities and 
thus do not require recipients to incur any additional costs. If 
recipients choose to continue to operate schools, classes, or 
extracurricular activities under their current policies or practices 
and choose not to provide single-sex education, no added costs will be 
incurred. Those recipients that choose to provide single-sex schools, 
classes, or extracurricular activities may incur additional expenses. 
The costs associated with providing single-sex education under the 
final regulations will range from minimal to substantial, depending on 
what options recipients choose to provide.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 
requirements.

Assessment of Educational Impact

    In the NPRM we requested comments on whether the proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available.
    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

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.
    These final regulations also will be available at OCR's Web site on 
the Internet at: http://www.ed.gov/ocr.

    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: October 20, 2006.
Margaret Spellings,
Secretary of Education.

0
For the reasons discussed in the preamble, the Secretary amends 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

0
1. The authority citation for part 106 continues to read as follows:

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


0
2. Section 106.34 is revised to read as follows:


Sec.  106.34  Access to classes and schools.

    (a) General standard. Except as provided for in this section or 
otherwise in this part, a recipient shall not provide or otherwise 
carry out any of its

[[Page 62543]]

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) Contact sports in physical education classes. 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) Ability grouping in physical education classes. 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) Human sexuality classes. 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) Choruses. 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) Classes and extracurricular activities. (1) 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 or extracurricular 
activities, if--
    (i) Each single-sex class or extracurricular activity is based on 
the recipient's important objective--
    (A) To improve educational achievement of its students, through a 
recipient's overall established policy to provide diverse educational 
opportunities, provided that the single-sex nature of the class or 
extracurricular activity is substantially related to achieving that 
objective; or
    (B) To meet the particular, identified educational needs of its 
students, provided that the single-sex nature of the class or 
extracurricular activity is substantially related to achieving that 
objective;
    (ii) The recipient implements its objective in an evenhanded 
manner;
    (iii) Student enrollment in a single-sex class or extracurricular 
activity is completely voluntary; and
    (iv) The recipient provides to all other students, including 
students of the excluded sex, a substantially equal coeducational class 
or extracurricular activity in the same subject or activity.
    (2) Single-sex class or extracurricular activity for the excluded 
sex. A recipient that provides a single-sex class or extracurricular 
activity, in order to comply with paragraph (b)(1)(ii) of this section, 
may be required to provide a substantially equal single-sex class or 
extracurricular activity for students of the excluded sex.
    (3) Substantially equal factors. Factors the Department will 
consider, either individually or in the aggregate as appropriate, in 
determining whether classes or extracurricular activities are 
substantially equal include, but are not limited to, 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, 
geographic accessibility, the quality, accessibility, and availability 
of facilities and resources provided to the class, and intangible 
features, such as reputation of faculty.
    (4) Periodic evaluations. (i) The recipient must conduct periodic 
evaluations to ensure that single-sex classes or extracurricular 
activities are based upon genuine justifications and do not rely on 
overly broad generalizations about the different talents, capacities, 
or preferences of either sex and that any single-sex classes or 
extracurricular activities are substantially related to the achievement 
of the important objective for the classes or extracurricular 
activities.
    (ii) Evaluations for the purposes of paragraph (b)(4)(i) of this 
section must be conducted at least every two years.
    (5) Scope of coverage. The provisions of paragraph (b)(1) through 
(4) of this section apply to classes and extracurricular activities 
provided by a recipient directly or through another entity, but the 
provisions of paragraph (b)(1) through (4) of this section do not apply 
to interscholastic, club, or intramural athletics, which are subject to 
the provisions of Sec. Sec.  106.41 and 106.37(c) of this part.
    (c) Schools. (1) General Standard. Except as provided in paragraph 
(c)(2) of this section, a recipient that operates a public 
nonvocational elementary or secondary school that excludes from 
admission any students, on the basis of sex, must provide students of 
the excluded sex a substantially equal single-sex school or 
coeducational school.
    (2) Exception. A nonvocational public charter school that is a 
single-school local educational agency under State law may be operated 
as a single-sex charter school without regard to the requirements in 
paragraph (c)(1) of this section.
    (3) Substantially equal factors. Factors the Department will 
consider, either individually or in the aggregate as appropriate, in 
determining whether schools are substantially equal include, but are 
not limited to, 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 extracurricular offerings, the qualifications of 
faculty and staff, geographic accessibility, the quality, 
accessibility, and availability of facilities and resources, and 
intangible features, such as reputation of faculty.
    (4) Definition. For the purposes of paragraph (c)(1) through (3) of 
this section, the term ``school'' includes a ``school within a 
school,'' which means an administratively separate school located 
within another school.

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


0
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: 20 U.S.C. 1681, 1682)


0
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: 20 U.S.C. 1681, 1682)


 [FR Doc. E6-17858 Filed 10-24-06; 8:45 am]
BILLING CODE 4000-01-P