[Federal Register: May 8, 2002 (Volume 67, Number 89)]
[Proposed Rules]
[Page 31097-31099]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my02-44]
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Part V
Department of Education
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34 CFR Part 106
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance; Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 106
RIN 1870-AA11
Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance
AGENCY: Office for Civil Rights, Department of Education.
ACTION: Notice of intent to regulate.
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SUMMARY: The Secretary provides notice that the Secretary intends to
propose amendments to the regulations implementing Title IX of the
Education Amendments of 1972 to provide more flexibility for educators
to establish single-sex classes and schools at the elementary and
secondary levels. The purpose of the amendments would be to support
efforts of school districts to improve educational outcomes for
children and to provide public school parents with a diverse array of
educational options that respond to the educational needs of their
children, while at the same time ensuring appropriate safeguards
against discrimination. We want to permit appropriate latitude for
innovative efforts to help children learn and to expand the choices
parents have for their children's education consistent with the
purposes of the Title IX statute and the Constitution. We are issuing a
notice of intent to regulate (NOIR) to ensure adequate public input
regarding these important and sensitive issues.
DATES: We must receive your comments on or before July 8, 2002.
ADDRESSES: Address all comments about our intent to regulate to Gerald
A. Reynolds, Assistant Secretary for Civil Rights, U.S. Department of
Education, 400 Maryland Avenue, SW., room 5000, Mary E. Switzer
Building, Washington, DC 20202-1100. For all comments submitted by
letter, you should include the term ``Single-sex Notice of Intent
Comments.''
If you prefer to send your comments through the Internet, use the
following address: ocr@ed.gov.
You should include the term ``Single-sex Notice of Intent
Comments'' in the subject line of your electronic message.
FOR FURTHER INFORMATION CONTACT: Jeanette J. Lim, Office for Civil
Rights, U.S. Department of Education, 400 Maryland Avenue, SW., room
5036, Mary E. Switzer Building, Washington, DC 20202-1100. Telephone:
(202) 205-8635 or 1-800-421-3481.
If you use a telecommunications device for the deaf (TDD), you may
call 1-877-521-2172. For additional copies of this document, you may
call OCR's Customer Service Team at (202) 205-5413 or 1-800-421-3481.
The notice of intent will also be available at OCR's site on the
Internet at: www.ed.gov/ocr.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Background
Title IX of the Education Amendments of 1972 (Title IX) prohibits
discrimination on the basis of sex in education programs and activities
that receive Federal financial assistance. 20 U.S.C. 1681(a). Title IX
is implemented through regulations by agencies providing Federal
assistance to education programs and activities. 20 U.S.C. 1682. Our
current Title IX regulations were issued by our predecessor agency, the
Department of Health, Education, and Welfare (HEW), and became
effective July 21, 1975.\1\ The statute and implementing regulations
contain specific provisions regarding single-sex classes, programs, and
activities (classes) and single-sex schools. These existing
requirements are discussed in detail in a separate document published
elsewhere in this issue of the Federal Register, entitled ``Guidelines
on current title IX requirements related to single-sex classes and
schools.'' The No Child Left Behind Act of 2001, which reauthorized the
Elementary and Secondary Education Act of 1965, requires the Secretary
to issue these guidelines not less than 120 days from the date of
enactment.
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\1\ The HEW regulations were the result of an extensive public
comment process and congressional review. HEW received and
considered more than 9700 comments before issuing the final
regulations. After the final regulations were issued, but before
they became effective, Congress held 6 days of hearings to examine
whether the regulations were consistent with the statute. See Sex
Discrimination Regulations: Hearings before the Subcomm. on
Postsecondary Education of the House Comm. on Education and Labor,
94th Cong., 1st Sess. (1975) (``Regulations Review Hearings'').
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The legal and educational issues surrounding single-sex classes and
schools are complex and sensitive and require consultations with other
Federal agencies, including the Department of Justice, as well as input
from parents, community leaders, school districts, and interested
individuals and organizations. This NOIR is intended to begin the
process of public input on these important issues.
The use of single-sex classes and schools can reflect important and
legitimate efforts to improve educational outcomes for all students.
Rather than being motivated by outdated notions regarding the
limitations or limited goals of members of one sex, some of these
efforts aim to provide new and better ways to help all students learn
and meet high standards. We expect that any proposal to amend or
clarify the Title IX regulations would apply only to nonvocational
elementary and secondary schools and classes. This is where the need
for flexibility to respond to students' diverse educational needs is
most prevalent.
Invitation To Comment
Single-sex classes: We want to permit appropriate latitude for
schools to implement innovative efforts to help children learn and to
expand the choices parents have for their children's education
consistent with the Title IX statute and the Constitution.\2\ We
recognize that to promote excellence and innovation, consistent with
the purposes of the No Child Left Behind Act of 2001, it is important
that parents have an opportunity to choose an educational program that
best fits the needs of their children and that educators have an array
of educational options to meet the diverse needs of this nation's
students. We are also mindful of congressional concerns--at the time of
Title IX's enactment--that some coeducational institutions used sex-
based policies and practices that reflected outdated and stereotyped
notions of the differences between the sexes and of the limited
abilities of girls and women. See e.g., 118 Cong. Rec. 5804-08. In
developing a regulatory proposal, we will ensure that educational
opportunities are not limited to students based on sex and that single-
sex classes are not based on sex-role stereotypes.
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\2\ The Supreme Court has decided two significant constitutional
cases specifically regarding single-sex education. United States v.
Virginia, 518 U.S. 515 (1996) (State-sponsored, male-only military
college violated Equal Protection Clause); Mississippi University
for Women v. Hogan, 458 U.S. 718 (1982) (State-sponsored, female-
only nursing school violated the Equal Protection Clause.)
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We invite comments on whether, and under what circumstances,
schools should be permitted to offer single-sex classes under the Title
IX regulations. The Secretary specifically invites advice and
recommendations from States and local administrators, parents,
teachers, community leaders, paraprofessionals,
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members of local boards of education, charter school operators and
public chartering agencies, civil rights groups, and education
organizations. We are particularly interested in comments on the
criteria that should be used by schools and the Department in
determining the sufficiency of educational justifications for single-
sex classes and in examples of educational justifications that would
meet the proposed criteria. The following are some questions intended
to guide your comments:
(1) Should a school district have to explain the benefits of
single-sex classes for its students? If so, what kinds of explanations
would be adequate? To what extent should these explanations be
supported by scientifically based research, assessments of the needs of
local students, or other reliable evidence?
(2) Assuming that a school district provides a single-sex class to
students of one sex, would it be possible for a coeducational class to
provide equal opportunity for students of the other sex? If so, under
what circumstances?
(3) If it is not possible for a coeducational class to provide
equal opportunity for students of the other sex, and a single sex class
would be required, what happens if there is little interest in a
single-sex class among students of one sex?
(4) Must student assignments to single-sex classes always be
voluntary? If not, when are mandatory assignments permissible?
(5) Are there any classes that should not be permitted to be
single-sex? For example, at the time that Title IX was enacted,
Congress was particularly concerned about discrimination in single-sex
vocational education classes and sex-segregated physical education
classes (although students could be separated by sex in physical
education classes involving contact sports.)
Single-sex schools: Because of the statutory exemption for single-
sex admissions policies of single-sex elementary and secondary schools,
which is reflected in the Title IX regulations, a school district does
not need to provide the Department with a justification for offering a
single-sex school. There is already flexibility in the regulations for
allowing school districts to offer single-sex nonvocational schools as
long as certain conditions are met. (See the ``Guidelines on current
title IX requirements related to single-sex classes and schools'' for a
more complete discussion regarding the need for certain regulations in
this area.) However, we are interested in receiving comments on the
following issues:
(1) If a school district provides a single-sex school to students
of one sex, would it be possible for a coeducational school to provide
equal opportunity for students of the other sex? If so, under what
circumstances?
(2) Are there special considerations with regard to single-sex
charter schools or magnet schools? Should a school district, State, or
chartering agency be required to offer a school for students of the
other sex? If so, under what circumstances?
(3) Given the Supreme Court's decision in United States v.
Virginia, 518 U.S. 515 (1996), should a school district that
establishes single-sex schools or classes for one sex be required to
establish schools or classes for the other sex that are ``comparable''
or that meet some other standard?
(Note: With this question, we seek input regarding classes as
well as schools.)
During and after the comment period, you may inspect all public
comments received in response to this notice in room 5036, Mary E.
Switzer Building, 330 C Street, SW., Washington, DC, between the hours
of 9:30 a.m. and 5 p.m., Eastern time, Monday through Friday of each
week except Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for this NOIR. If you want to schedule an appointment
for this type of aid, please contact the person listed under FOR
FURTHER INFORMATION CONTACT.
Electronic Access to This Document
You may review this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document (PDF) on the Internet at the following site:
www.ed.gov/legislation/FedRegister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: www.access.gpo.gov/nara/
index.html.
After we review comments on this notice, we will publish a proposed
amendment to the Title IX regulations for public comment.
Authority: 20 U.S.C. 1681, 1682.
Dated: May 3, 2002.
Rod Paige,
Secretary of Education.
[FR Doc. 02-11476 Filed 5-7-02; 8:45 am]
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