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Clinton Presidential Records
Digital Records Marker
This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
digitization capabilities, we are sometimes unable to adequately
scan such dividers. The title from the original document is
indicated below.
6
Divider Title:
B
U.S. Department of Justice
Civil Rights Division
Office of the Assistant Attorney General
Washington, D.C. 20035
SEP 22 1997
Ms. Ellen J. Vargyas
Legal Counsel
Equal Employment Opportunity Commission
1801 L Street, N.W., Room 6002
Washington, D.C. 20507
Ellen
Dear Ms. Vargyas:
Pursuant to Executive Order 12067, we are submitting for review by the Equal
Employment Opportunity Commission (EEOC) a draft notice of proposed rulemaking (NPRM)
of a common rule prepared by the Department of Justice to implement Title IX of the Education
Amendments of 1972, as amended, 20 U.S.C. §§ 1681-1688. All of the 24 agencies that have
federally assisted education programs and currently do not have a Title IX regulation are
participating in this common rule. In addition, we intend that the four agencies that have Title
IX regulations (the Departments of Education, Energy, Agriculture, and Health and Human
Services) will modify their regulations to conform to the final version of the common rule.
We are providing this to you in draft form as we wish to receive the EEOC's views before
the rule is submitted to the participating agencies for review. As you know, the common rule is
based on the Department of Education's (ED's) Title IX regulations. To assist your review, our
modifications to the ED regulation are reflected by shading for additions of new text and strike-
outs for deletions of existing text. In addition, this draft does not include the portion of the
common rule that includes each agency's adoption of the common rule text or agency-specific
inserts. Agency-specific language will include designation of an agency official for various
responsibilities identified in the common rule, such as approval of assurance forms and initial
determinations of recipient compliance, and an agency's adoption of that portion of its Title VI
regulations that addresses enforcement procedures. Two agencies that do not have Title VI
regulations will include the text of procedures that are identical to other agencies' Title VI
procedures.
We also are submitting this draft to the Department of Education for comment, and a
similar draft has been submitted to the Office of Federal Register (OFR) for review of the
notice's format and consistency with OFR requirements. In addition, you should note that this
draft has not been formally reviewed by the Department's Office of Legal Counsel (OLC). We
will inform you of any changes of substance rather than format. Given our interest in
publication of this NPRM at the earliest possible date, and notwithstanding the potential for
amendment to this draft, your prompt review of this draft would be appreciated greatly.
- 2 - -
If you have any questions regarding this document, feel free to contact Merrily
Friedlander, Chief, Coordination and Review Section, at 307-2222, or Jennifer Levin, an attorney
in the Coordination and Review Section, at 305-0025.
Sincerely,
Danla Katz Pinge
Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division
Enclosure
U.S. Department of Justice
Civil Rights Division
Office of the Assistant Attorney General
Washington, D.C. 20035
SEP 22 1997
Ms. Jamienne S. Studley
Acting General Counsel
Department of Education
600 Independence Avenue, S.W., Room 5400
Washington, D.C. 20202-2110
Dear Ms. Studley: Jamie
I have enclosed for your review a draft notice of proposed rulemaking (NPRM) of a
common rule prepared by the Department of Justice to implement Title IX of the Education
Amendments of 1972, as amended, 20 U.S.C. §§ 1681-1688. All of the 24 agencies that have
federally assisted education programs and currently do not have a Title IX regulation are
participating in this common rule. In addition, it is intended that the Department of Education,
and other three agencies that have Title IX regulations (the Departments of Energy, Agriculture,
and Health and Human Services) will modify their regulations to conform to the final version of
the common rule.
We are providing this to you in draft form as we wish to receive ED's views before the
rule is submitted to the participating agencies for review. As you know, the common rule is
based on your agency's Title IX regulations. To assist your review, our modifications to the ED
regulation are reflected by shading for additions of new text and strike-outs for deletions of
existing text. In addition, this draft does not include the portion of the common rule that includes
each agency's adoption of the common rule text or agency-specific inserts. Agency-specific
language will include designation of an agency official for various responsibilities identified in
the common rule, such as approval of assurance forms and initial determinations of recipient
compliance, and an agency's adoption of that portion of its Title VI regulations that addresses
enforcement procedures. Two agencies that do not have Title VI regulations will include the text
of procedures that are identical to other agencies' Title VI procedures.
We also are submitting this draft to the Equal Employment Opportunity Commission for
comment pursuant to Executive Order 12067, and a similar draft has been submitted to the Office
of Federal Register (OFR) for review of the notice's format and consistency with OFR
requirements. In addition, you should note that this draft has not been formally reviewed by the
Department's Office of Legal Counsel. We will inform you of any changes of substance rather
than format. Given our interest in publication of this NPRM at the earliest possible date, and
notwithstanding the potential for amendment to this draft, your prompt review of this draft would
be appreciated greatly.
- 2 -
If you have any questions regarding this document, feel free to contact Merrily
Friedlander, Chief, Coordination and Review Section, at 307-2222, or Jennifer Levin, an attorney
in the Coordination and Review Section, at 305-0025.
Sincerely,
Isabelle Katz Pinzler
Acting Assistant Attorney General
Civil Rights Division
Enclosure
cc:
Ms. Norma Cantu
Assistant Secretary for Civil Rights
Draft 9/15/97
[DOUBLE SPACE DOCUMENT FOR FEDERAL REGISTER]
[ADD remaining participating agencies and CFR cite for reg in order of CFR volume]
DEPARTMENT OF STATE
22 CFR Part 146
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3
DEPARTMENT OF JUSTICE
28 CFR Part 42
DEPARTMENT OF LABOR
29 CFR Part 36
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 18
NUCLEAR REGULATORY COMMISSION
10 CFR Part 4
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1253
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 7
GENERAL SERVICES ADINISTRATION
41 CFR Part 101
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 19
42
NATIONAL SCIENCE FOUNDATION
45 CFR Part 618
Nondiscrimination on the Basis of Sex in Education Programs and Activities Receiving
or Benefitting from Federal Financial Assistance
AGENCIES: Department of Commerce, Department of Defense, Department of Housing
and Urban Development, Department of Interior, Department of Justice, Department of
Labor, Department of State, Department of Transportation, Department of Treasury,
Department of Veterans Affairs, Agency for International Development, Corporation for
National & Community Service, Environmental Protection Agency, Federal Emergency
Management Agency, General Services Administration, Institute for Museum and
Library Sciences, National Aeronautics and Space Administration, National Endowment
for the Arts, National Endowment for the Humanities, National Science Foundation,
Nuclear Regulatory Commission, Small Business Administration, Tennessee Valley
Authority, United States Information Agency.
ACTION: Notice of proposed rulemaking.
SUMMARY: This proposed regulation, presented as a common rule, provides for the
enforcement of Title IX of the Education Amendments of 1972, as amended ("Title IX")
by the agencies identified above. Title IX prohibits discrimination on the basis of sex
in education programs or activities that receive Federal financial assistance.
DATES: Comments must be received on or before (Insert date 60? days after date of
publication in the FEDERAL REGISTER).
ADDRESSES: Interested parties should submit written comments on this notice of
proposed rulemaking to Merrily A. Friedlander, Chief, Coordination and Review
Section, P.O. Box 65960, Washington, D.C. 20035-6560, facsimile (202) 307-0595.
See Supplementary Information Section for comments regarding the availability of this
document in alternative formats.
FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Chief,
Coordination and Review Section, Civil Rights Division, U.S. Department of Justice,
(202) 307-2222.
SUPPLEMENTARY INFORMATION:
Background
The purpose of this proposed common rule is to provide for the enforcement of
Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681, et seq.)
("Title IX"), as it applies to educational programs and activities that receive Federal
financial assistance from the agencies participating in this notice. Because the proposed
standards to be established are the same for all of the participating agencies, they are
publishing this notice of proposed rulemaking jointly. The procedures for how an
agency will enforce Title IX, including the conduct of investigations and compliance
reviews, also follow the same structure; all agencies except the Department of Treasury
(Treasury) and the U.S. Information Agency (USIA) are incorporating their respective
procedures under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d, which are
virtually identical. Title IX is modeled after Title VI and the statutes have the same
2
statutory enforcement mechanisms. Although Treasury and the USIA do not have Title
VI regulations, they are establishing enforcement procedures, as set forth below, that
are akin to other agencies' Title VI procedures for enforcement. The final rule adopted
by each agency will be codified in that agency's portion of the Code of Federal
Regulations as indicated in this notice.
During the early 1980s, several agencies published notices of proposed
rulemaking for Title IX, but the proposed rules were never issued as final rules. For
example, on June 17, 1980, the Department of Justice published a notice of proposed
rulemaking. See 45 Fed. Reg. 41001 (1980). ADD other agency citations. By
participating in this notice of proposed rulemaking, these agencies are initiating a new
rulemaking proceeding.
Additional Comment Information
Copies of this notice are available, upon request, in large print and electronic
file on computer disk. Other formats will be considered upon request.
Overview
As set forth in this proposed rule, the substantive nondiscrimination obligations
of the agencies, for the most part, are identical to those established by the Department
of Education (ED) under Title IX. See 34 CFR Part 106. ED's regulations are the
model for this notice for several reasons; the history of public participation in the
development, and congressional approval of ED's regulations, ED's role in Title IX
enforcement, judicial interpretations of ED's regulations, familiarity by recipients, and
an interest to maintain consistency of interpretation of regulations enforcing Title IX.
The regulations, initially issued by the former Department of Health, Education, and
Welfare (and adopted by ED upon its establishment in 1980), are the result of an
extensive public comment process and congressional review. HEW received and
considered more than 9700 comments before drafting its final regulations. Further,
after the final regulations were issued, but before they became effective, Congress held
five days of hearing to determine whether the regulations were consistent with the
statute. Sex Discrimination Regulations: Hearings before the Subcommittee on
Postsecondary Education of the House Committee on Education and Labor, 94th
Cong., 1st Sess. (1975).
In addition, under Executive Order 12250, the Department of Justice is
responsible for the "consistent and effective implementation" of several civil rights
laws, including Title IX. Using the ED regulation as the basis for the agencies
participating in this common rule promotes consistency and efficiency not only for
agencies but for the recipient community. ED is the lead agency for enforcement of
Title IX through its guidance, interpretations, and technical assistance, investigative
3
expertise, and resources committed. As the vast majority of recipients of Federal
assistance from the identified agencies also receive assistance from ED, recipients
should be subject to a single set of obligations with respect to Title IX.
Further, both Congress and the courts have taken action with respect to or
interpreted Title IX and various provisions of ED's regulations. For example, in 1974,
Congress amended the statute because of its disagreement with provisions in ED's
proposed rule. See 20 U.S.C. 1681(a)(6). As mentioned, Congress also held hearings
prior to its approval of the final regulations by HEW. In addition, in 1982, the
Supreme Court upheld that portion of ED's regulations that prohibit discrimination by a
recipient on the basis of sex in its employment practices. See North Haven V. Bell, 456
U.S. 512 (1982). As discussed below, Congress also passed the Civil Rights
Restoration Act of 1987 (CRRA), in large part, to reverse the Supreme Court's decision
in Grove City College V. Bell, 465 U.S. 555 (1984). See S. Rep. No. 64, 100th Cong.,
2d Sess. 2, reprinted in 1988 U.S.C.C.A.N. 3, 3-4. The recipient community, Federal
agencies, and the courts should continue to have the benefit and continued reliance on
past interpretations of Title IX and its regulations, and using the ED regulation as the
model for other agencies promotes that consistency.
As mentioned, the proposed regulations are not an exact duplication of ED's
regulations as this proposal addresses several statutory changes that are not reflected in
the existing (but soon to be modified) ED regulation. A detailed discussion of these
changes is set forth below.
Upon the issuance of final regulations by the participating agencies,
beneficiaries and affected parties will have more opportunities to file complaints or seek
information regarding Title IX enforcement from various agencies. The agencies
intend to develop a means of sharing enforcement responsibilities and information to
ensure that the most effective action is pursued, at the same time as avoiding both
duplication of inquiries by the Federal government and any undue burden on recipients
due to multiple inquiries.
Summary of Regulation
As stated, Title IX prohibits discrimination on the basis of sex in educational
programs or activities that receive Federal financial assistance. Specifically, the statute
states, "No person shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under any education program
or activity receiveng Federal financial assistance,
"
with specific exceptions for
various entities, programs and activities. 20 U.S.C. 1681(a). This statute was modeled
after Title VI, which prohibits discrimination on the basis of race, color, and national
origin in all programs or activities that receive Federal financial assistance. The goal of
Title IX is to ensure that Federal funds are not utilized for and do not support gender
4
based discrimination. and that individuals have equal opportunities, without regard to
gender, to pursue, engage or participate in. and benefit from academic, extracurricular,
research, occupational training, employment. or other educational programs and
activities. For example (and without limitation), subject to exceptions described in this
regulation, Title IX prohibits a recipient from discriminating on the basis of sex in:
student admissions, scholarship awards and tuition assistance, recruitment of students
and employees, the provision of courses and other academic offerings, the provision of
and participation in athletics and extracurricular activities, and all aspects of
employment, including, but not limited to, selection, hiring, compensation, benefits,
job assignments and classification, promotions, demotions, tenure, training, transfers,
leave, layoffs, and termination. All provisions of the regulation are to be interpreted
consistent with existing case law.
It should be noted that we have retained sections from the ED regulation that
impose deadlines for action by recipients. For example, section
.3 includes a
deadline for education institutions to conduct a self-evaluation and section . 16
includes a time table for completion of transitions by an education institution
eliminating its single-sex status. We have included these and other provisions to allow
for the possible but rare instance where such sections may continue to be relevant for
certain recipients. If a recipient of assistance from a participating agency also receives
funding from ED or another agency with an existing Title IX regulation, however, the
deadlines, as interpreted by the ED or other agency's regulation, as applicable,
continue to govern. Further, to the extent a recipient has conducted an evaluation or
established procedures to conform to the ED or another agency's Title IX regulation,
the recipient need not repeat such action in order to conform to the regulations adopted
by the participating agencies. For example, if a recipient has established grievance
procedures, it need not modify such procedures or establish other procedures to comply
to these regulations in the absence of guidance or instructions from a participating
agency that modification or other action is necessary. Similarly, if a recipient already
has conducted a self-evaluation under Title IX, it need not conduct a new self-
evaluation as a result of receiving funds from a participating agency, but need only take
action if such evaluation or implementation is found to be incomplete or not in
compliance with the regulations.
Subpart A sets forth definitions as well as provisions concerning remedial
action and affirmative action, required assurances, adoption of grievance procedures,
and notification of nondiscrimination policies. The effect of State and other laws and
other requirements is also explained.
Subpart B addresses the scope or coverage of Title IX. Subject to specific
exceptions for institutions or activities, any educational program or activity, any part of
which receives or benefits from Federal financial assistance, is subject to Title IX.
5
Modifications of ED's existing regulation to conform to the statutory
amendments to Title IX are addressed in this subpart. Section
.
12 is amended to
incorporate the expanded exemption for entities controlled by religious institutions.
Under the CRRA, any operation of an entity may be exempt from Title IX due to
control by a religious organization with tenets that are not consistent with the provisions
of Title IX. See 20 U.S.C. 1687. The exemption is no longer limited to only
educational institutions that are controlled by religious organizations with tenets
contrary to Title IX. Further, the exemption would apply to a particular program(s)
operated by a recipient if this separate program is subject to religious tenets that are not
consistent with Title IX. A recipient may apply for an exemption from the funding
agency(ies). If a recipient has obtained an exemption from ED, such exemption may be
submitted to another funding agency as a basis for an exemption from it.
While it is not expected that educational institutions will have a transition plan,
we have retained the text of sections
- 16 and 17. In addition, the text of
- 16
has been slightly modified to require that any transition plans be submitted solely to the
Department of Education.
A new section,
-
18, addresses all other statutory amendments. See 20
U.S.C. 1681(a)(7)-(9), 1687, 1688. Three exemptions to Title IX's coverage are
identified in - 18(a) based on amendments passed in 1976. 20 U.S.C. 1681(a)(7)-
(9). Congress exempts activities undertaken by the American Legion to operate Boy's
State, Girl's State, Boy's Nation, and Girl's Nation, and any promotional activity or
selection of participants for such programs by educational institutions. 20 U.S.C.
1681(a)(7). In addition, father-son and mother-daughter activities that are sponsored by
educational institutions are similarly exempt from coverage, with the condition that if
such activities are conducted, reasonably comparable activities must be provided for
students of the opposite sex. 20 U.S.C. 1681(a)(8). Third, educational institutions
may provide scholarships or other benefits to persons who participate in single sex
contests where personal appearance is a basis for reward, what is commonly referred to
as "beauty pageants." 20 U.S.C. 1681(a)(9).
As part of the CRRA, Congress also added a definition of "program or activity."
See 20 U.S.C. 1687. Congress took this action in order to reverse the meaning and
consequences of the Supreme Court's decision in Grove City College, supra, which
defined "program or activity" in restrictive terms. 465 U.S. at 572-74; S. Rep. No. 64
at 11-16, reprinted in 1988 U.S.C.C.A.N. at 13-18. The Court concluded in Grove
City College that Federal student financial assistance provided to a college established
Title IX jurisdiction only over the college's financial aid office, not the entire college.
Ibid. The "program or activity" was the financial aid program. This interpretation
significantly narrowed the prohibitions of Title IX and its counterparts, Title VI of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d, et seq., the Age
Discrimination Act of 1975, 42 U.S.C. 6101, et seq., and Section 504 of the
6
Rehabilitation Act of 1973, as amended, 29 U.S.C. 794. See S. Rep. No. 64, 100th
Cong., 2d Sess. at 2-3, 11-16, reprinted in 1988 U.S.C.C.A.N. at 3-4, 13-18.
By statutory amendment, and as set forth in 18(b), Congress restored the
broad interpretation accorded the phrase "program or activity" prior to Grove City
College. The provision addresses the scope of coverage for four broad categories of
recipients; State or local entities, educational institutions, private entities, and an entity
that is a combination of any of the aforementioned groups. The scope of coverage is no
longer limited to the exact purpose or nature of the Federal funding. If, for example, a
State or local agency receives Federal assistance for one of many functions of the
agency, all of the operations of the entire agency are subject to the nondiscrimination
provisions of Title IX. 20 U.S.C. 1687(1)(A). Further, if the aid is distributed to an
entity or unit of government that subsequently distributes the assistance to a second
agency, the entire agency to which the assistance was initially allocated is subject to
Title IX. See 20 U.S.C. 1687(1)(B); S. Rep. No. 64 at 16, reprinted in 1988
U.S.C.C.A.N. at 18. With respect to educational institutions, it is critical to remember
that all of the operations of the institution, whether or not such operation is educational
or academic in nature, are subject to Title IX's prohibition on discrimination. Thus,
housing programs, a shuttle service, food service, and other commercial operations are
covered by Title IX. The degree of coverage of private entities, such as private
corporations and partnerships, will vary depending on how the funding is provided, the
principal purpose or objective of the entity, and/or how the entity is structured (e.g.,
physically separate offices or plants). All of the operations of private businesses that
are principally engaged in education, health care, housing, social services or parks and
recreation are considered a "program or activity" for purposes of Title IX. 20 U.S.C.
1687(3)(A)(ii). S. Rep. No. 64 provides numerous other examples of the scope of
coverage with regard to each category of recipient, and readers are referred to this
material. S. Rep. No. 64 at 16-20, reprinted in 1988 U.S.C.C.A.N. at 18-22.
Finally, it is important to note that the restored, broad interpretation of
"program or activity" does not in any way alter the requirement of 29 U.S.C. 1682 that
a proposed or effectuated fund termination be limited to the particular program(s) "or
part thereof" that discriminate(s), or, as appropriate, to all of the programs that are
infected by the discriminatory practices. See S. Rep. No. 64 at 20, reprinted in 1988
U.S.C.C.A.N. at 22 ("The bill defines 'program' in the same manner as 'program or
activity,' and leaves intact the 'or part thereof pinpointing language.").
Third, .18(c) reflects the "abortion neutrality" provision in the CRRA,
commonly referred to as the Danforth amendment, which provides: "Nothing in this
part shall be construed to require or prohibit any person, or public or private entity, to
provide or pay for any benefit or service, including the use of facilities, related to an
abortion. Nothing in this section shall be construed to permit a penalty to be imposed
on any person or individual because such person or individual is seeking or has
7
received any benefit or service related to a legal abortion." 20 U.S.C. 1688.
The first sentence of the Danforth Amendment is incorporated in subsection
. 18(c)(1), which states that recipients are not required to provide or pay for any
benefit or service related to an abortion. Consistent with congressional intent,
however, this provision does not allow recipients of Federal assistance to deny medical
procedures, benefits, services, or the use of facilities if the life of the mother will be
endangered if the pregnancy continued to term, or for medical complications arising
from or related to an abortion.
The second sentence of the Danforth amendment is incorporated in
18(c)(2). In addition, this subsection makes it clear that, consistent with the
Danforth Amendment, the regulations prohibit discrimination against, exclusion of, or
denial of benefits to, a person because that person has obtained, sought, or will seek an
abortion. This prohibition applies to any service or benefit for an applicant (for
enrollment or employment), student, or employee.²
1
See 134 Cong. Rec. S227 (daily ed. Jan. 28, 1988) (In response to Sen. Metzenbaum's
charge that discriminatory treatment would follow adoption of the Danforth
amendment, and criticism that the amendment failed to account for abortions that are
necessary to save the life of the mother, Sen. Danforth replied that Sen. Metzenbaum's
characterizations were "completely erroneous and totally without foundation at all.");
134 Cong. Rec. H568 (daily ed. Mar. 2, 1988) (statement of Rep. Hawkins); id. at
H571 (statement of Rep. Jeffords); id. at H581 (statement of Rep. Aucoin) ("Equally
important is the fact that the bill clearly prohibits denial of provision of services related
to complications arising from abortion under the terms of title IX."); "); id. at H584
(statement of Rep. Edwards) ("Under its provisions, a covered institution does not have
to include the costs of an abortion procedure in insurance for its students or employees.
But [it] does not mean that it can exclude, for example, medical complications related to
an abortion. Under the Danforth Amendment, Title IX still requires those
complications to be covered.").
2
This provision is consistent with the Danforth provision and congressional intent.
Statements of numerous senators and representatives, including Sen. Danforth and other
sponsors, reiterate the plain meaning of the prohibition, and equate the imposition of
penalties as one form of discriminatory treatment against women who have sought or
will seek an abortion. See 134 Cong. Rec. S163 (daily ed. Jan. 27, 1988) (statement of
Sen. Danforth) ("In fact, it is prohibited - hospitals, colleges, universities - from
discriminating against people who have had abortions or who are seeking abortions. So
it does not intend to authorize, in fact, it prohibits, penalties against people who have
8
Finally, in order to conform ED's existing text to that aspect of the Danforth
amendment that does not require or prohibit a recipient from providing services or
payment for an abortion, a specific reference to 18(c)(1) is added to the following
four provisions:
21(c)(3),
.39,
40(b)(4), and
.57(c).
Subpart C addresses nondiscrimination on the basis of sex in admission and
recruitment practices with respect to students. For example, recipients may not impose
numerical limits on the number or proportion of persons of either sex who may be
admitted. In addition, a recipient may not give preference to another by separately
ranking applicants on the basis of sex, or otherwise treat an individual differently
because of his or her sex. Additional prohibitions of discrimination on the basis of
parental and marital status are also identified.
Subpart D addresses nondiscrimination on the basis of sex in education
programs and activities. Specific areas covered in this subpart are housing, access to
made their own choice for abortion.") (emphasis added); 134 Cong. Rec. S227 (daily
ed. Jan. 28, 1988) (statement of Sen. Wilson) ([The second sentence of the Danforth
amendment] was language that I and others insisted be in there, precisely to ensure that
there could not be discrimination against women who either are seeking or have
received abortion-related services.") (emphasis added).
Other members of Congress agreed with the Danforth amendment because of the
specific inclusion of language prohibiting discrimination. E.g., 134 Cong. Rec. H581
(daily ed. Mar. 2, 1988) (statement of Rep. AuCoin) ("And with their statements [by
Sen. Danforth and Wilson, as quoted above] clarifying that this legislation before us
today expressly prohibits, and does not in any way permit, discrimination against
women who have had or are seeking abortions, I can support this bill."); "); id. at H584
(statement of Rep. Edwards). See also id. at H571 (statement of Rep. Jeffords) ("The
second sentence of the amendment will ensure that a woman is not denied scholarships,
promotions, extracurricular activities, student employment or any other benefits
because she has received or is seeking an abortion."); id. at H581 (statement of Rep.
AuCoin) ("With assurances from the authors of the Danforth amendment, and with the
clarification provided by the floor leaders today, it is now clear that this legislation
prohibits discrimination based on a person's decision regarding abortion - in
scholarships, in housing, in extracurricular activities, in student or faculty hire and
tenure, and in other benefits offered to students or employees under title IX."); id. at
H584 (statement of Rep. Edwards) (Whether it be scholarships, promotions,
extracurricular activities, student employment or any other benefits offered to students
or employees, under title IX benefits cannot be withheld from a student or employees
because she received or is seeking an abortion." ").
9
course offerings, access to schools operated by local education agencies, counseling,
financial assistance, employment assistance to students, health and insurance benefits
and services, consideration of marital and parental status, and athletics. The proposed
regulations do not cover a recipient's use of particular textbooks or curricular
materials. The time frames identified in section
.41(d), which address athletic
programs, only apply if the recipient also does not receive funding from the Department
of Education: otherwise, such recipient is expected to have complied with the time
frames as interpreted for the ED regulation.
Subpart E covers the prohibitions of discrimination on the basis of sex in
employment in educational programs and activities. Specific aspects of employment
that are addressed include hiring and employment criteria, recruitment, compensation,
job classification and structure, promotion and termination, fringe benefits,
consideration of marital or parental status, leave practices, advertising, and
preemployment inquiries as to parental and marital status. The subpart also includes a
provision to exempt actions where sex is a bona fide occupational qualification.
Subpart F addresses the agency's respective procedures for implementation and
enforcement of Title IX. For those agencies that have regulations to implement Title
VI, such procedures will be adopted and incorporated by reference. Title VI and IX
address discrimination in Federally assisted programs and have identical statutory
enforcement schemes. The administrative enforcement procedures in Title VI
regulations are virtually identical among the participating agencies, and differences are
of minor consequence. For two agencies that do not have Title VI regulations, the
Treasury and USIA, the specific text is set forth herein. The proposed text for
Treasury and USIA are also virtually the same as existing regulations for other
agencies. To the extent an agency has regulations, based on other statutes, that address
nondiscrimination on the basis of sex in programs or activities that receive Federal
financial assistance, such regulations remain in force and are not affected by this
regulation.
Applicable Executive Orders and Regulatory Certifications
This regulation has been reviewed by the Equal Employment Opportunity
Commission pursuant to Executive Order 12067.
This regulation has been drafted and reviewed in accordance with Executive
Order 12866, § 1(b), Principles of Regulation. The Attorney General has determined that
this rule is a "significant regulatory action" under Executive Order 12866, § 3(f),
Regulatory Planning and Review and, accordingly, this rule has been reviewed by the
Office of Management and Budget.
This regulation is not a major rule as defined by the Small Business Regulatory
10
Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual
effect on the economy of $100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets. All of the entities that are subject to
these regulations are already covered by Title IX. While this regulation imposes a new
standard of liability and requires that recipients establish grievance procedures and take
other action, a substantial number of entities already are subject to other agency's Title
IX regulations that impose the same requirements. Accordingly, these regulations will
not impose new obligations on many recipients.
This regulation enforces a statutory prohibition on discrimination on the basis of
sex and, therefore, no actions were deemed necessary under the Unfunded Mandates
Reform Act of 1995. Furthermore, this regulation will not result in the expenditure by
State, local and tribal governments, in the aggreggate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or uniquely affect
small governments.
The Attorney General, in accordance with the Regulatory Flexibility Act, 5
U.S.C. 605(b), has reviewed this regulation and by approving it certifies that this
regulation will not have a significant economic impact on a substantial number of small
entities because all of the entities that are subject to these regulations are already subject
to Title IX, and a substantial number of entities already are subject to the Title IX
regulations of other agencies.
The recordkeeping requirements described in the proposed rule are considered to
be information collection requirements as that term is defined by the Office of
Management and Budget in 5 CFR part 1320. Accordingly, these proposed information
collection requirements are being submitted to OMB for review pursuant to the
Paperwork Reduction Act. Comments on the proposed information requirements should
be submitted to: Office of Management and Budget, Office of Information and
Regulatory Affairs, Washington, D.C. 20503. Attention: Desk Officer for the
Department of Justice.
Text of the Proposed Common Rule
The text of this common rule as proposed for amendment in this document appears
below:
PART
-NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS AND ACTIVITIES RECEIVING OR BENEFITTING FROM
FEDERAL FINANCIAL ASSISTANCE
11
§
.1 Purpose and effective date.
§
.2 Definitions.
§
.3 Remedial and affirmative action and self-evaluation.
§
.4 Assurance required.
§
.5 Transfers of property.
§
.6 Effect of other requirements.
§
.7 Effect of Employment opportunities.
§
.8 Designation of responsibile employee and adoption of grievance procedures.
§
.9 Dissemination of policy.
§
.10 [Reserved]
§
.11 Application.
§
.12 Educational institutions and other entities controlled by religious
organizations.
§
.13 Military and merchant marine educational institutions.
§
.14 Membership practices of certain organizations.
§
.15 Admissions.
§
.16 Educational institutions eligible to submit transition plans.
§
.17 Transition plans.
§
.18 Statutory amendments.
§
.19-20 [Reserved]
§
.21 Admission.
§
.22 Preference in admission.
§
.23 Recruitment.
§
.24-30 [Reserved]
§
.31 Education programs and activities.
§
.32 Housing.
§
.33 Comparable facilities.
§
.34 Access to course offerings.
§
.35 Access to schools operated by LEAs.
§
.36 Counseling and use of appraisal and counseling materials.
§
.37 Financial assistance.
§
.38 Employment assistance to students.
§
.39 Health insurance benefits and services.
§
.40 Marital or parental status.
§
.41 Athletics.
§
.42 Textbooks and curricular material.
§
.43-50 [Reserved]
§
.51 Employment.
§
.52 Employment criteria.
§
.53 Recruitment.
§
.54 Compensation.
§
.55 Job classification and structure.
§
.56 Fringe benefits.
12
§
.57 Marital or parental status.
§
.58 Effect of state or local law or other requirements.
§
.59 Advertising.
§
.60 Pre-employment inquiries.
§
.61 Sex as a bona-fide occupational qualification.
§
.62-70 [Reserved]
§
.71 Procedures.
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.
SUBPART A-INTRODUCTION
§
.1 . Purpose and effective date.
The purpose of this part is to effectuate title IX of the Education Amendments of 1972,
as amended by Pub L. 93-568, 88 Stat. 1855 (except sections 904 and 906 of those
Amendments) which is designed to eliminate (with certain exceptions) discrimination on
the basis of sex in any education program or activity receiving Federal financial
assistance, whether or not such program or activity is offered or sponsored by an
educational institution as defined in this part. This part is also intended to effectuate
section 844 of the Education Amendments of 1974, Pub.L. 93-380, 88 Stat. 484. The
effective date of this part shall be
§
.2 Definitions.
As used in this part, the term:
(a) "Title IX" means title IX of the Education Amendments of 1972, Pub. L. 92-318,
6Stat 373 (except sections 904-and.906 thereof) as amended by section 3 of Pub. L.
93-568, 88 Stat. 1855, except sections 904 and 906 thereof; 10
Stat 2234 and Section For Pub-165 Sixta 20 U.S.C.
1681, 1682, 1683, 1685,
(b) "Department" means the Department of Education.
(c) "Secretary" means the Secretary of Education.
(b) "Assistant Secretary" means the Assistant Secretary for Civil Rights of the
Department Designated agency official" means to be-mserted? by agency
(c) "Reviewing Authority" means that component of the Department delegated authority
by the Secretary to appoint, and to review the decisions of, administrative law judges in
13
cases arising under this part. 3
(f) "Administrative law judge" means a person appointed by the reviewing authority to
preside over a hearing held under this part.
(c) "Federal financial assistance" means any of the following, when authorized or
extended under a law administered by the Department agency:
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or
facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to any entity for
payment to or on behalf of students admitted to that entity, or extended directly to such
students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including
surplus property, and the proceeds of the sale or transfer of such property, if the
Federal share of the fair market value of the property is not, upon such sale or transfer,
properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or
at consideration reduced for the purpose of assisting the recipient or in recognition of
public interest to be served thereby, or permission to use Federal property or any
interest therein without consideration.
(5) Any other contract, agreement, or arrangement which has as one of its purposes the
provision of assistance to any education program or activity, except a contract of
insurance or guaranty.
(d) "Recipient" means any State or political subdivision thereof, or any instrumentality
of a State or political subdivision thereof, any public or private agency, institution, or
organization, or other entity, or any person, to whom Federal financial assistance is
extended directly or through another recipient and which operates an education program
or activity which receives or benefits from such assistance, including any subunit,
successor, assignee, or transferee thereof.
3 This definition is specific to ED's enforcement procedures only.
14
(e) "Applicant" means one who submits an application, request, or plan required to be
approved by a Department areagency official, or by a recipient, as a condition to
becoming a recipient.
(f) "Educational institution" means a local educational agency (LEA) as defined by
section 1001(f) of the Elementary and Secondary Education Act of 1965 (20 U.S.C.
3381), a preschool, a private elementary or secondary school, or an applicant or
recipient of the type defined by paragraph (k), (1), (m), or (n) of this section.
(g) "Institution of graduate higher education" means an institution which:
(h) Offers academic study beyond the bachelor of arts or bachelor of science degree,
whether or not leading to a certificate of any higher degree in the liberal arts and
sciences; or
(2) Awards any degree in a professional field beyond the first professional degree
(regardless of whether the first professional degree in such field is awarded by an
institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for
the purpose of facilitating research by persons who have received the highest graduate
degree in any field of study.
(i) "Institution of undergraduate higher education" means:
(1) An institution offering at least two but less than four years of college level study
beyond the high school level, leading to a diploma or an associate degree, or wholly or
principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body which certifies credentials or offers degrees, but which may or
may not offer academic study.
(j) "Institution of professional education" means an institution (except any institution of
undergraduate higher education) which offers a program of academic study that leads to
a first professional degree in a field for which there is a national specialized accrediting
agency recognized by the Secretary of the Department's Fincation
(k) "Institution of vocational education" means a school or institution (except an
institution of professional or graduate or undergraduate higher education) which has as
its primary purpose preparation of students to pursue a technical, skilled, or semiskilled
occupation or trade, or to pursue study in a technical field, whether or not the school or
15
institution offers certificates, diplomas, or degrees and whether or not it offers fulltime
study.
(1) "Administratively separate unit" means a school, department or college of an
educational institution (other than a local educational agency) admission to which is
independent of admission to any other component of such institution.
(m) "Admission" means selection for part-time, full-time, special, associate, transfer,
exchange, or any other enrollment, membership, or matriculation in or at an education
program or activity operated by a recipient.
(n) "Student" means a person who has gained admission.
(o) "Transition plan" means a plan subject to the approval of the Secretary of the
Department of-Educafion pursuant to section 901(a)(2) of the Education Amendments of
1972, under which an educational institution operates in making the transition from
being an educational institution which admits only students of one sex to being one
which admits students of both sexes without discrimination.
§
.3 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the Assistant Secretary finds that a
recipient has discriminated against persons on the basis of sex in an education program
or activity, such recipient shall take such remedial action as the Assistant Secretary
designated: agency official deems necessary to overcome the effects of such
discrimination.
(b) Affirmative action. In the absence of a finding of discrimination on the basis of sex
in an education program or activity, a recipient may take affirmative action to overcome
the effects of conditions which resulted in limited participation therein by persons of a
particular sex. Nothing herein shall be interpreted to alter any affirmative action
obligations which a recipient may have under Executive Order 11246.
(c) Self-evaluation. Each recipient education institution shall, within one year of the
effective date of this part:
(1) Evaluate, in terms of the requirements of this part, its current policies and practices
and the effects thereof concerning admission of students, treatment of students, and
employment of both academic and non-academic personnel working in connection with
the recipient's education program or activity;
(2) Modify any of these policies and practices which do not or may not meet the
requirements of this part; and
16
(3) Take appropriate remedial steps to eliminate the effects of any discrimination which
resulted or may have resulted from adherence to these policies and practices.
(d) Availability of self-evaluation and related materials. Recipients shall maintain on
file for at least three years following completion of the evaluation required under
paragraph (c) of this section, and shall provide to the Assistant Secretary designated
agency officiaFupon request, a description of any modifications made pursuant to
paragraph (c)(ii)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(iii)(3) of this section.
§
.4 Assurance required.
(a) General. Every application for Federal financial assistance for any education
program or activity shall as condition of its approval contain or be accompanied by an
assurance from the applicant or recipient, satisfactory to the Assistant Secretary
designated agency official, that each education program or activity operated by the
applicant or recipient and to which this part applies will be operated in compliance with
this part. An assurance of compliance with this part shall not be satisfactory to the
Assistant Secretary designatedagencpofficial if the applicant or recipient to whom
such assurance applies fails to commit itself to take whatever remedial action is
necessary in accordance with §
.3(a) to eliminate existing discrimination on the
basis of sex or to eliminate the effects of past discrimination whether occurring prior or
subsequent to the submission to the Assistant Secretary designafed/ageneyitificialso of
such assurance.
(b) Duration of obligation.
(1) In the case of Federal financial assistance extended to provide real property or
structures thereon, such assurance shall obligate the recipient or, in the case of a
subsequent transfer, the transferee, for the period during which the real property or
structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide personal property,
such assurance shall obligate the recipient for the period during which it retains
ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the period during
which Federal financial assistance is extended.
(c) Form. The Director designated agency official will specify the form of the
assurances required by paragraph (a) of this section and the extent to which such
assurances will be required of the applicant's or recipient's subgrantees, contractors,
subcontractors, transferees, or successors in interest.
17
§
.5 Transfers of property.
If a recipient sells or otherwise transfers property financed in whole or in part with
Federal financial assistance to a transferee which operates any education program or
activity, and the Federal share of the fair market value of the property is not upon such
sale or transfer properly accounted for to the Federal Government both the transferor
and the transferee shall be deemed to be recipients, subject to the provisions of Subpart
B of this part.
§
.6 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by this part are
independent of, and do not alter, obligations not to discriminate on the basis of sex
imposed by Executive Order 11246, as amended; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 292d and 298b-2); Title VII of the Civil Rights Act of
1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act (29 U.S.C. 206 and 206(d)); and
any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The obligation to comply with
this part is not obviated or alleviated by any State or local law or other requirement
which would render any applicant or student ineligible, or limit the eligibility of any
applicant or student, on the basis of sex, to practice any occupation or profession.
(c) Effect of rules or regulations of private organizations. The obligation to comply
with this part is not obviated or alleviated by any rule or regulation of any organization,
club, athletic or other league, or association which would render any applicant or
student ineligible to participate or limit the eligibility or participation of any applicant
or student, on the basis of sex, in any education program or activity operated by a
recipient and which receives or benefits from Federal financial assistance.
§
.7 Effect of employment opportunities.
The obligation to comply with this part is not obviated or alleviated because
employment opportunities in any occupation or profession are or may be more limited
for members of one sex than for members of the other sex.
§
.8 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall designate at least one
employee to coordinate its efforts to comply with and carry out its responsibilities
under this part, including any investigation of any complaint communicated to such
recipient alleging its noncompliance with this part or alleging any actions which would
be prohibited by this part. The recipient shall notify all its students and employees of
18
the name, office address and telephone number of the employee or employees appointed
pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and publish grievance
procedures providing for prompt and equitable resolution of student and employee
complaints alleging any action which would be prohibited by this part.
§
.9 Dissemination of policy.
(a) Notification of policy.
(1) Each recipient shall implement specific and continuing steps to notify applicants for
admission and employment, students and parents of elementary and secondary school
students, employees, sources of referral of applicants for admission and employment,
and all unions or professional organizations holding collective bargaining or
professional agreements with the recipient, that it does not discriminate on the basis of
sex in the educational programs or activities which it operates, and that it is required by
title IX and this part not to discriminate in such a manner. Such notification shall
contain such information, and be made in such manner, as the Assistant Secretary
designated agency official finds necessary to apprise such persons of the protections
against discrimination assured them by title IX and this part, but shall state at least that
the requirement not to discriminate in education programs and activities extends to
employment therein, and to admission thereto unless Subpart C does not apply to the
recipient, and that inquiries concerning the application of title IX and this part to such
recipient may be referred to the employee designated pursuant to §
.8, or to the
Assistant Secretary designated agency official.
(2) Each recipient shall make the initial notification required by paragraph (a)(1) of this
section within 90 days of the effective date of this part or of the date this part first
applies to such recipient, whichever comes later, which notification shall include
publication in:
(i) Local newspapers;
(ii) newspapers and magazines operated by such recipient or by student, alumnae, or
alumni groups for or in connection with such recipient; and
(iii) memoranda or other written communications distributed to every student and
employee of such recipient.
(b) Publications.
(1) Each recipient shall prominently include a statement of the policy described in
19
paragraph (a) of this section in each announcement, bulletin, catalog, or application
form which it makes available to any person of a type, described in paragraph (a) of
this section, or which is otherwise used in connection with the recruitment of students
or employees.
(2) A recipient shall not use or distribute a publication of the type described in this
paragraph which suggests, by text or illustration, that such recipient treats applicants,
students, or employees differently on the basis of sex except as such treatment is
permitted by this part.
(c) Distribution. Each recipient shall distribute without discrimination on the basis of
sex each publication described in paragraph (b) of this section, and shall apprise each of
its admission and employment recruitment representatives of the policy of
nondiscrimination described in paragraph (a) of this section, and require such
representatives to adhere to such policy.
SUBPART B-COVERAGE
§
. 11 Application.
Except as provided in this subpart, this Part
applies to every recipient and to each
education program or activity operated by such recipient which receives or benefits
from Federal financial assistance.
§
. 12 Educational institutions and other entities-controlled by religious
organizations.
(a) Application. This part does not apply to any operation of an educational institution
other entity: which is controlled by a religious organization to the extent application
of this part would not be consistent with the religious tenets of such organization.
(b) Exemption. An educational institution oF other entity which wishes to claim the
exemption set forth in paragraph (a) of this section, shall do so by submitting in writing
to the Assistant Secretary statement by the highest ranking
official of the institution, identifying the provisions of this part which conflict with a
specific tenet of the religious organization.
§
. 13 Military and merchant marine educational institutions.
This part does not apply to an educational institution whose primary purpose is the
training of individuals for a military service of the United States or for the merchant
marine.
20
§
. 14 Membership practices of certain organizations.
(a) Social fraternities and sororities. This part does not apply to the membership
practices of social fraternities and sororities which are exempt from taxation under
section 501(a) of the Internal Revenue Code of 1954, the active membership of which
consists primarily of students in attendance at institutions of higher education.
(b) YMCA. YWCA. Girl Scouts. Boy Scouts and Camp Fire Girls. This part does not
apply to the membership practices of the Young Men's Christian Association, the
Young Women's Christian Association, the Girl Scouts, the Boy Scouts and Camp Fire
Girls.
(c) Voluntary youth service organizations. This part does not apply to the membership
practices of voluntary youth service organizations which are exempt from taxation
under section 501(a) of the Internal Revenue Code of 1954 and the membership of
which has been traditionally limited to members of one sex and principally to persons
of less than nineteen years of age.
§
. 15 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973, are not covered by
this part.
(b) Administratively separate units. For the purposes only of this section, §§
.16
and
.17, and Subpart C, each administratively separate unit shall be deemed to be
an educational institution.
(c) Application of Subpart C. Except as provided in paragraphs (d) and (e) of this
section, Subpart C applies to each recipient. A recipient to which Subpart C applies
shall not discriminate on the basis of sex in admission or recruitment in violation of that
subpart.
(d) Educational institutions. Except as provided in paragraph (e) of this section as to
recipients which are educational institutions, Subpart C applies only to institutions of
vocational education, professional education, graduate higher education, and public
institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. Subpart C does not apply to
any public institution of undergraduate higher education which traditionally and
continually from its establishment has had a policy of admitting only students of one
sex.
21
§
. 16 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational institution to which Subpart C
applies which:
(1) Admitted only students of one sex as regular students as of June 23, 1972; or
(2) Admitted only students of one sex as regular students as of June 23, 1965, but
thereafter admitted as regular students, students of the sex not admitted prior to June
23, 1965.
(b) Provision for transition plans. An educational institution to which this section
applies shall not discriminate on the basis of sex in admission or recruitment in
violation of Subpart C unless it is carrying out a transition plan approved by the
Secretary of the Department of Education as described in §
. .17, which plan
provides for the elimination of such discrimination by the earliest practicable date but in
no event later than June 23, 1979.
§
. 17 Transition plans.
(a) Submission of plans. An institution to which §
. .16 applies and which is
composed of more than one administratively separate unit may submit either a single
transition plan applicable to all such units, or a separate transition plan applicable to
each such unit.
(b) Content of plans. In order to be approved by the Secretary oFthesDepartment.di
Education a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on Education (FICE)
Code of the educational institution submitting such plan, the administratively separate
units to which the plan is applicable, and the name, address, and telephone number of
the person to whom questions concerning the plan may be addressed. The person who
submits the plan shall be the chief administrator or president of the institution, or
another individual legally authorized to bind the institution to all actions set forth in the
plan.
(2) State whether the educational institution or administratively separate unit admits
students of both sexes, as regular students and, if so, when it began to do so.
(3) Identify and describe with respect to the educational institution or administratively
separate unit any obstacles to admitting students without discrimination on the basis of
sex.
22
(4) Describe in detail the steps necessary to eliminate as soon as practicable each
obstacle so identified and indicate the schedule for taking these steps and the individual
directly responsible for their implementation.
(5) Include estimates of the number of students, by sex, expected to apply for, be
admitted to, and enter each class during the period covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which §
. 16 applies
shall result in treatment of applicants to or students of such recipient in violation of
Subpart C unless such treatment is necessitated by an obstacle identified in paragraph
(b)(3) of this section and a schedule for eliminating that obstacle has been provided as
required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past exclusion of students on
the basis of sex, each educational institution to which §
. 16 applies shall include in
its transition plan, and shall implement, specific steps designed to encourage individuals
of the previously excluded sex to apply for admission to such institution. Such steps
shall include instituting recruitment programs which emphasize the institution's
commitment to enrolling students of the sex previously excluded.
18 Statutory Amendments
his section, which applies to all provisions of this par andresses Statifiory
amendments to Title EX
a This part shall not apply to or preclude:
9 Any program or activity of the American Eegion:undertaken III connection the
organization or operation of any Boys State conference, Boys Nation conferences GITES
State conference, or Girls Nation conference
Many program OE activity of a secondary school (onceducational Institution 50 estreatly
DE! the promotion of any Boys State conterence Boys 1x1 abon conference. THE
State conference, or Girls Nation conference; OF II) of studentsit amend
any such conference;
BE Father-son or mother-daughter activities at are educational institution butter with
activities are: provided for students of one sex: copportimities comparable
activities shall be provided to students of the other sex:
4 Any scholarship or other financial assistance.awarded 155 areinstitutionso Shreher
education to an individual because such individualihas; received NUMI award-in asingle
sex pageant based upon a combination of factors.related in the moryndual personal
23
appearance, poise, and talent. The pageant, however, must comply with other
nondiscrimination provisions of Federal law.
OF Program or activity or "program" mean all of the operations of
DCS
A department, agency, special purpose district, OF other-mstrumentahity.of
State or of a: local government; or
(15)
The entity of such State or local government that distributes suchassist VERITING
each such department or agency (and each other State or-localogove mich
entity) to which the assistance is extended, in the case of assistance t F. STATICUT
local government;
A da college, university, OF other postsecondary institution.or apublie.s Stem (if
Bigherteducation: OF
1:9
AL local educational agency (as defined in section 880F of
system of vocational education, or other school system
53(74)
entire corporation, partnership, or other private organization.org
entire sole proprietorship-
E
Plassistance is extended to such corporation, partnership, private organization
orsole proprietorship as a whole; OE
FJ
Which is principally engaged in the business of providingeducation-health
care, housing, social services, or parks and recreation;Tor
1:3
the entire plant or other comparable, geographically separate: facility.to
which Federal financial assistance is extended III the case of anywher
corporation, partnership, private organization. OF sole proprietorship (T)
e any other entity which is established by two or more of the entities described m
paragraph (1), (2), or (3);
any part of which is extended Federal financial assistance, except that suchiterm the
not-mclude any operation of an entity which is controlled by areligious organization ii
the application of 20 U.S.C. 5 1681 to such operation would notbe: consistently
religious tenets of such organization For example,all of the operations THE college
university. or other postsecondary institution, including but not limited to traditional
educational operations, faculty and student housing, campus shuttle bus service
restaurants, the bookstore, and other commercial activities are part ofa program
activity subject to this part if the college, university or other institutionareceves (if
24
benefits. from Federal financial assistance
(C)CHE Nothing in this part'shall be construed required
other ogprivate entity, torprovide OF pay in
di facilities: related to: am abortions Medical procedures
E facilities life of (1) the motherivel 15
TERM
Nothme-instins section Stral beconstrued
because.such personal
r. legal abortion
sections personishall beexellinded mom
besubjected in discrimination
corpational transfer employment
recipientawinch receives benefits HEIGHT
adiyidua has Sought DETECEIVED OBSISEC THE 1691
SUBPART C-DISCRIMINATION ON THE BASIS OF SEX IN ADMISSION AND
RECRUITMENT PROHIBITED
§
21 Admission.
(a) General. No person shall, on the basis of sex, be denied admission, or be subjected
to discrimination in admission, by any recipient to which this subpart applies, except as
provided in §§
. 16 and
.17.
(b) Specific prohibitions.
(1) In determining whether a person satisfies any policy or criterion for admission, or
in making any offer of admission, a recipient to which this subpart applies shall not:
(i) Give preference to one person over another on the basis of sex, by ranking
applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of either sex
who may be admitted; or
(iii) Otherwise treat one individual differently from another on the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for admission
which has a disproportionately adverse effect on persons on the basis of sex unless the
use of such test or criterion is shown to predict validly success in the education
25
program or activity in question and alternative tests or criteria which do not have such a
disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In determining whether a person
satisfies any policy or criterion for admission, or in making any offer of admission, a
recipient to which this subpart applies:
(1) Shall not apply any rule concerning the actual or potential parental, family, or
marital status of a student or applicant which treats persons differently on the basis of
sex;
(2) Shall not discriminate against or exclude any person on the basis of pregnancy,
childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any
rule or practice which so discriminates or excludes;
(3) Shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or
recovery therefrom in the same manner and under the same policies as any other
temporary disability or physical condition; and
(4) Subject.to Shall not make pre-admission inquiry as to the
marital status of an applicant for admission, including whether such applicant is "Miss"
or "Mrs." A recipient may make pre-admission inquiry as to the sex of an applicant for
admission, but only if such inquiry is made equally of such applicants of both sexes and
if the results of such inquiry are not used in connection with discrimination prohibited
by this part.
§
.22 Preference in admission.
A recipient to which this subpart applies shall not give preference to applicants for
admission, on the basis of attendance at any educational institution or other school or
entity which admits as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on the basis of sex in
violation of this subpart.
§
.23 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which this subpart applies shall not
discriminate on the basis of sex in the recruitment and admission of students. A
recipient may be required to undertake additional recruitment efforts for one sex as
remedial action pursuant to §
.3(a), and may choose to undertake such efforts as
affirmative action pursuant to §
.3(b).
(b) Recruitment at certain institutions. A recipient to which this subpart applies shall
26
not recruit primarily or exclusively at educational institutions, schools or entities which
admit as students only or predominantly members of one sex, if such actions have the
effect of discriminating on the basis of sex in violation of this subpart.
SUBPART D-DISCRIMINATION ON THE BASIS OF SEX IN EDUCATION
PROGRAMS AND ACTIVITIES PROHIBITED
§
31 Education programs and activities.
(a) General. Except as provided elsewhere in this part, no person shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any academic, extracurricular, research, occupational training, or
other education program or activity operated by a recipient which receives or benefits
from Federal financial assistance. This subpart does not apply to actions of a recipient
in connection with admission of its students to an education program or activity of (1) a
recipient to which Subpart C does not apply, or (2) an entity, not a recipient, to which
Subpart C would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in this subpart, in providing any aid,
benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such person
satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a
different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other
treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant,
including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant
assistance to any agency, organization, or person which discriminates on the basis of
sex in providing any aid, benefit or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or
opportunity.
(c) Assistance administered by a recipient educational institution to study at a foreign
27
institution. A recipient educational institution may administer or assist in the
administration of scholarships, fellowships, or other awards established by foreign or
domestic wills, trusts, or similar legal instruments, or by acts of foreign governments
and restricted to members of one sex, which are designed to provide opportunities to
study abroad, and which are awarded to students who are already matriculating at or
who are graduates of the recipient institution; Provided, a recipient educational
institution which administers or assists in the administration of such scholarships,
fellowships, or other awards which are restricted to members of one sex provides, or
otherwise makes available reasonable opportunities for similar studies for members of
the other sex. Such opportunities may be derived from either domestic or foreign
sources.
(d) Programs not operated by recipient.
(1) This paragraph applies to any recipient which requires participation by any
applicant, student, or employee in any education program or activity not operated
wholly by such recipient, or which facilitates, permits, or considers such participation
as part of or equivalent to an education program or activity operated by such recipient,
including participation in educational consortia and cooperative employment and
student-teaching assignments.
(2) Such recipient;
(i) Shall develop and implement a procedure designed to assure itself that the operator
or sponsor of such other education program or activity takes no action affecting any
applicant, student, or employee of such recipient which this part would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if such action
occurs.
§
.32 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply different rules or
regulations, impose different fees or requirements, or offer different services or
benefits related to housing, except as provided in this section (including housing
provided only to married students).
(b) Housing provided by recipient.
(1) A recipient may provide separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when compared to that
28
provided to students of the other sex, shall be as a whole:
(i) Proportionate in quantity to the number of students of that sex applying for such
housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing.
(1) A recipient shall not, on the basis of sex, administer different policies or practices
concerning occupancy by its students of housing other than provided by such recipient.
(2) A recipient which, through solicitation, listing, approval of housing, or otherwise,
assists any agency, organization, or person in making housing available to any of its
students, shall take such reasonable action as may be necessary to assure itself that such
housing as is provided to students of one sex, when compared to that provided to
students of the other sex, is as a whole:
(i) Proportionate in quantity and (ii) comparable in quality and cost to the student. A
recipient may render such assistance to any agency, organization, or person which
provides all or part of such housing to students only of one sex.
§
.33 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower facilities on the basis
of sex, but such facilities provided for students of one sex shall be comparable to such
facilities provided for students of the other sex.
§
.34 Access to course offerings.
A recipient shall not provide any course or otherwise carry out any of its education
program or activity separately on the basis of sex, or require or refuse participation
therein by any of its students on such basis, including health, physical education,
industrial, business, vocational, technical, home economics, music, and adult education
courses.
(a) With respect to classes and activities in physical education at the elementary school
level, the recipient shall comply fully with this section as expeditiously as possible but
in no event later than one year from the effective date of this regulation. With respect
to physical education classes and activities at the secondary and post-secondary levels,
the recipient shall comply fully with this section as expeditiously as possible but in no
event later than three years from the effective date of this regulation.
29
(b) 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.
(c) 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.
(d) Where use of a single standard of measuring skill or progress in a physical
education class has an adverse effect on members of one sex, the recipient shall use
appropriate standards which do not have such effect.
(e) Portions of classes in elementary and secondary schools which deal exclusively with
human sexuality may be conducted in separate sessions for boys and girls.
(f) Recipients may make requirements based on vocal range or quality which may result
in a chorus or choruses of one or predominantly one sex.
§
.35 Access to schools operated by LEAs.
A recipient which is a local educational agency shall not, on the basis of sex, exclude
any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational unit operated by such recipient, unless such
recipient otherwise makes available to such person, pursuant to the same policies and
criteria of admission, courses, services, and facilities comparable to each course,
service, and facility offered in or through such schools.
§
.36 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any person on the basis of
sex in the counseling or guidance of students or applicants for admission.
(b) Use of appraisal and counseling materials. A recipient which uses testing or other
materials for appraising or counseling students shall not use different materials for
students on the basis of their sex or use materials which permit or require different
treatment of students on such basis unless such different materials cover the same
occupations and interest areas and the use of such different materials is shown to be
essential to eliminate sex bias. Recipients shall develop and use internal procedures for
ensuring that such materials do not discriminate on the basis of sex. Where the use of a
30
counseling test or other instrument results in a substantially disproportionate number of
members of one sex in any particular course of study or classification, the recipient
shall take such action as is necessary to assure itself that such disproportion is not the
result of discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that a particular class contains a
substantially disproportionate number of individuals of one sex, the recipient shall take
such action as is necessary to assure itself that such disproportion is not the result of
discrimination on the basis of sex in counseling or appraisal materials or by counselors.
§
.37 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this section, in providing
financial assistance to any of its students, a recipient shall not:
(1) On the basis of sex, provide different amount or types of such assistance, limit
eligibility for such assistance which is of any particular type or source, apply different
criteria, or otherwise discriminate; (2) through solicitation, listing, approval, provision
of facilities or other services, assist any foundation, trust, agency, organization, or
person which provides assistance to any of such recipient's students in a manner which
discriminates on the basis of sex; or (3) apply any rule or assist in application of any
rule concerning eligibility for such assistance which treats persons of one sex
differently from persons of the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments.
(1) A recipient may administer or assist in the administration of scholarships,
fellowships, or other forms of financial assistance established pursuant to domestic or
foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign
government which requires that awards be made to members of a particular sex
specified therein; Provided, That the overall effect of the award of such sex-restricted
scholarships, fellowships, and other forms of financial assistance does not discriminate
on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of
this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of
nondiscriminatory criteria and not on the basis of availability of funds restricted to
members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial
assistance is allocated to each student selected under paragraph (b)(2)(i) of this section;
31
and
(iii) No student is denied the award for which he or she was selected under paragraph
(b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other
form of financial assistance designated for a member of that student's sex.
(c) Athletic scholarships.
(1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must
provide reasonable opportunities for such awards for members of each sex in
proportion to the number of students of each sex participating in interscholastic or
intercollegiate athletics.
(2) Separate athletic scholarships or grants-in-aid for members of each sex may be
provided as part of separate athletic teams for members of each sex to the extent
consistent with this paragraph and §
.41.
§
.38 Employment assistance to students.
(a) Assistance by recipient in making available outside employment. A recipient which
assists any agency, organization or person in making employment available to any of its
students:
(1) Shall assure itself that such employment is made available without discrimination on
the basis of sex; and
(2) Shall not render such services to any agency, organization, or person which
discriminates on the basis of sex in its employment practices.
(b) Employment of students by recipients. A recipient which employs any of its
students shall not do so in a manner which violates Subpart E of this part.
§
.39 Health and insurance benefits and services.
Subject to providing a medical, hospital, accident, or life
insurance benefit, service, policy, or plan to any of its students, a recipient shall not
discriminate on the basis of sex, or provide such benefit, service, policy, or plan in a
manner which would violate Subpart E of this part if it were provided to employees of
the recipient. This section shall not prohibit a recipient from providing any benefit or
service which may be used by a different proportion of students of one sex than of the
other, including family planning services. However, any recipient which provides full
coverage health service shall provide gynecological care.
32
§
. 40 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule concerning a student's actual
or potential parental, family, or marital status which treats students differently on the
basis of sex.
(b) Pregnancy and related conditions.
(1) A recipient shall not discriminate against any student, or exclude any student from
its education program or activity, including any class or extracurricular activity, on the
basis of such student's pregnancy, childbirth, false pregnancy, termination of
pregnancy or recovery therefrom, unless the student requests voluntarily to participate
in a separate portion of the program or activity of the recipient.
(2) A recipient may require such a student to obtain the certification of a physician that
the student is physically and emotionally able to continue participation in the normal
education program or activity so long as such a certification is required of all students
for other physical or emotional conditions requiring the attention of a physician.
(3) A recipient which operates a portion of its education program or activity separately
for pregnant students, admittance to which is completely voluntary on the part of the
student as provided in paragraph (b)(1) of this section shall ensure that the instructional
program in the separate program is comparable to that offered to non-pregnant students.
(4) Subject to 18(c)(1) of this part recipient shall treat pregnancy, childbirth,
false pregnancy, termination of pregnancy and recovery therefrom in the same manner
and under the same policies as any other temporary disability with respect to any
medical or hospital benefit, service, plan or policy which such recipient administers,
operates, offers, or participates in with respect to students admitted to the recipient's
educational program or activity.
(5) In the case of a recipient which does not maintain a leave policy for its students, or
in the case of a student who does not otherwise qualify for leave under such a policy, a
recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy
and recovery therefrom as a justification for a leave of absence for so long a period of
time as is deemed medically necessary by the student's physician, at the conclusion of
which the student shall be reinstated to the status which she held when the leave began.
§
.41 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from participation in, be
denied the benefits of, be treated differently from another person or otherwise be
discriminated against in any interscholastic, intercollegiate, club or intramural athletics
33
offered by a recipient, and no recipient shall provide any such athletics separately on
such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section,
a recipient may operate or sponsor separate teams for members of each sex where
selection for such teams is based upon competitive skill or the activity involved is a
contact sport. However, where a recipient operates or sponsors a team in a particular
sport for members of one sex but operates or sponsors no such team for members of the
other sex, and athletic opportunities for members of that sex have previously been
limited, members of the excluded sex must be allowed to try-out for the team offered
unless the sport involved is a contact sport. For the purposes of this part, contact
sports include boxing, wrestling, rugby, ice hockey, football, basketball and other
sports the purpose or major activity of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics shall provide equal athletic opportunity for
members of both sexes. In determining whether equal opportunities are available the
Director will consider, among other factors:
(1) Whether the selection of sports and levels of competition effectively accommodate
the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal expenditures for
male and female teams if a recipient operates or sponsors separate teams will not
constitute noncompliance with this section, but the Assistant Secretary
34
agency official may consider the failure to provide necessary funds for teams for one
sex in assessing equality of opportunity for members of each sex.
(d) Adjustment period. A recipient which operates or sponsors interscholastic,
intercollegiate, club or intramural athletics at the elementary school level shall comply
fully with this section as expeditiously as possible but in no event later than one year
from the effective date of this regulation. A recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics at the secondary or post-
secondary school level shall comply fully with this section as expeditiously as possible
but in no event later than three years from the effective date of this regulation.
§
. .42 Textbooks and curricular material.
Nothing in this regulation shall be interpreted as requiring or prohibiting or abridging
in any way the use of particular textbooks or curricular materials.
SUBPART E-DISCRIMINATION ON THE BASIS OF SEX IN EMPLOYMENT IN
EDUCATION PROGRAMS AND ACTIVITIES PROHIBITED
§
.51 Employment.
(a) General.
(1) No person shall, on the basis of sex, be excluded from participation in, be denied
the benefits of, or be subjected to discrimination in employment, or recruitment,
consideration, or selection therefor, whether full-time or part- time, under any
education program or activity operated by a recipient which receives or benefits from
Federal financial assistance.
(2) A recipient shall make all employment decisions in any education program or
activity operated by such recipient in a nondiscriminatory manner and shall not limit,
segregate, or classify applicants or employees in any way which could adversely affect
any applicant's or employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other relationship which directly
or indirectly has the effect of subjecting employees or students to discrimination
prohibited by this subpart, including relationships with employment and referral
agencies, with labor unions, and with organizations providing or administering fringe
benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the basis of
attendance at any educational institution or entity which admits as students only or
predominantly members of one sex, if the giving of such preferences has the effect of
35
discriminating on the basis of sex in violation of this part.
(b) Application. The provisions of this subpart apply to:
(1) Recruitment, advertising, and the process of application for employment;
(2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion,
transfer, layoff, termination, application of nepotism policies, right of return from
layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in compensation;
(4) Job assignments, classifications and structure, including position descriptions, lines
of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy, childbirth, false
pregnancy, termination of pregnancy, leave for persons of either sex to care for
children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or not administered by
the recipient;
(8) Selection and financial support for training, including apprenticeship, professional
meetings, conferences, and other related activities, selection for tuition assistance,
selection for sabbaticals and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational programs; and
(10) Any other term, condition, or privilege of employment.
§
.52 Employment criteria.
A recipient shall not administer or operate any test or other criterion for any
employment opportunity which has a disproportionately adverse effect on persons on
the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly successful
performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not have such
disproportionately adverse effect, are shown to be unavailable.
36
§
.53 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the
basis of sex in the recruitment and hiring of employees. Where a recipient has been
found to be presently discriminating on the basis of sex in the recruitment or hiring of
employees, or has been found to have in the past so discriminated, the recipient shall
recruit members of the sex so discriminated against so as to overcome the effects of
such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or exclusively at
entities which furnish as applicants only or predominantly members of one sex if such
actions have the effect of discriminating on the basis of sex in violation of this subpart.
§
.54 Compensation.
A recipient shall not make or enforce any policy or practice which, on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a rate less than that paid
to employees of the opposite sex for equal work on jobs the performance of which
requires equal skill, effort, and responsibility, and which are performed under similar
working conditions.
§
.55 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or
tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority systems, career
ladders, or tenure systems for similar jobs, position descriptions, or job requirements
which classify persons on the basis of sex, unless sex is a bona-fide occupational
qualification for the positions in question as set forth in §
.61.
§
.56 Fringe benefits.
(a) "Fringe benefits" defined. For purposes of this part, fringe benefits means: Any
medical, hospital, accident, life insurance or retirement benefit, service, policy or plan,
any profit-sharing or bonus plan, leave, and any other benefit or service of employment
37
not subject to the provision of §
.54.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe benefits available to
employees or make fringe benefits available to spouses, families, or dependents of
employees differently upon the basis of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan which does not
provide either for equal periodic benefits for members of each sex, or for equal
contributions to the plan by such recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or retirement plan which
establishes different optional or compulsory retirement ages based on sex or which
otherwise discriminates in benefits on the basis of sex.
§
.57 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any employment action:
(1) Concerning the potential marital, parental, or family status of an employee or
applicant for employment which treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for employment is the head
of household or principal wage earner in such employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude from employment
any employee or applicant for employment on the basis of pregnancy, childbirth, false
pregnancy, termination of pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to SC(1) delhispart
recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy,
and recovery therefrom and any temporary disability resulting therefrom as any other
temporary disability for all job related purposes, including commencement, duration
and extensions of leave, payment of disability income, accrual of seniority and any
other benefit or service, and reinstatement, and under any fringe benefit offered to
employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient which does not maintain a leave policy
for its employees, or in the case of an employee with insufficient leave or accrued
employment time to qualify for leave under such a policy, a recipient shall treat
pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery
therefrom as a justification for a leave of absence without pay for a reasonable period of
38
time, at the conclusion of which the employee shall be reinstated to the status which she
held when the leave began or to a comparable position, without decrease in rate of
compensation or loss of promotional opportunities, or any other right or privilege of
employment.
§
.58 Effect of State or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with this subpart is not
obviated or alleviated by the existence of any State or local law or other requirement
which imposes prohibitions or limits upon employment of members of one sex which
are not imposed upon members of the other sex.
(b) Benefits. A recipient which provides any compensation, service, or benefit to
members of one sex pursuant to a State or local law or other requirement shall provide
the same compensation, service, or benefit to members of the other sex.
§
.59 Advertising.
A recipient shall not in any advertising related to employment indicate preference,
limitation, specification, or discrimination based on sex unless sex is a bona-fide
occupational qualification for the particular job in question.
§
.60 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment inquiry as to the marital
status of an applicant for employment, including whether such applicant is "Miss or
Mrs."
(b) Sex. A recipient may make pre-employment inquiry as to the sex of an applicant
for employment, but only if such inquiry is made equally of such applicants of both
sexes and if the results of such inquiry are not used in connection with discrimination
prohibited by this part.
§
.61 Sex as a bona-fide occupational qualification.
A recipient may take action otherwise prohibited by this subpart provided it is shown
that sex is a bona-fide occupational qualification for that action, such that consideration
of sex with regard to such action is essential to successful operation of the employment
function concerned. A recipient shall not take action pursuant to this section which is
based upon alleged comparative employment characteristics or stereotyped
characterizations of one or the other sex, or upon preference based on sex of the
recipient, employees, students, or other persons, but nothing contained in this section
shall prevent a recipient from considering an employee's sex in relation to employment
39
in a locker room or toilet facility used only by members of one sex.
SUBPART F-PROCEDURES [INTERIM]
§
.71 Reserved.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 are
hereby adopted and incorporated herein by reference. These procedures may be found
at 34 CFR 100.6 100. 11 and 34 CFR, Part 101.
40
Clinton Presidential Records
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This is not a presidential record. This is used as an administrative
marker by the William J. Clinton Presidential Library Staff.
This marker identifies the place of a tabbed divider. Given our
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scan such dividers. The title from the original document is
indicated below.
7
Divider Title:
Draft 8/14/97
An Agreement Between All Executive Departments and Agencies that Conduct Federally
Assisted Programs to Delegate to the Department of Education, the Department of Health and
Human Services, and the Department of Veterans Affairs Certain Title VI and Title IX
Compliance Responsibilities with Respect to Certain Educational Institutions
A. Purpose
Title VI of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d et seq ("Title
VI"), prohibits discrimination on the basis of race, color, and national origin in programs or
activities that receive Federal financial assistance. Title IX of the Education Amendments of
1972, as amended, 20 U.S.C. § 1681 et seq ("Title IX"), similarly prohibits discrimination on
the basis of sex in education programs or activities that receive Federal financial assistance.
Section 1-207 of Executive Order 12250 authorizes the Attorney General to initiate cooperative
programs and agreements between Federal agencies to promote the effective enforcement of,
inter alia, Titles VI and IX, and similar laws that prohibit discrimination in Federally assisted
programs and activities. See, also, 28 C.F.R. §§ 42.401-415 (Coordination regulation with
respect to Title VI). This agreement will promote the consistent and coordinated enforcement
of Titles VI and IX by delegating certain enforcement authority for jointly funded educational
institutions to the Department of Education, Department of Health and Human Services, and
the Department of Veterans Affairs, as set forth herein. In addition, efficiency of enforcement
activities will be increased and burdens on recipients, beneficiaries, and Federal agencies will
be reduced as all agencies will share data on recipient compliance and eliminate duplicative
agency efforts.
B. Parties to this Agreement
Participating agencies are agencies that provide Federal financial assistance and will
delegate certain civil rights compliance responsibilities to the Departments of Education (ED),
Health and Human Services (HHS), and Veterans Affairs (VA). Specifically, participating
agencies are:
(list agencies). ED, HHS, and VA are a "participating agency" in
those circumstances where ED, HHS, or VA delegate responsibilities to each other.
C. Delegation
1. By this agreement, and subject to paragraphs (C)(2)-(3), participating agencies will
delegate to ED specific enforcement duties regarding Titles VI and IX, and similar laws that
prohibit discrimination in Federally assisted programs, (other than Section 504 of the
Rehabilitation Act of 1973, as amended), the enforcement duties delegated to ED are
enumerated below in Section D, and encompass programs involving elementary and secondary
education systems, and institutions and institutions of higher education and vocational
education that receive Federal assistance from both ED and any participating agency at the
time of the alleged discrimination ("designated ED recipients"). As appropriate, similar duties
are delegated for any educational institution subject to this paragraph that applies for Federal
2
assistance from a participating agency and which currently receives Federal assistance from
ED ("designated ED applicants").
2. By this agreement, and subject to paragraphs (C)(1) and (C)(3), participating
agencies will delegate to HHS specific enforcement duties regarding Titles VI and IX, and
similar laws that prohibit discrimination in Federally assisted programs, (other than Section
504 of the Rehabilitation Act of 1973, as amended), the enforcement duties delegated to HHS
are enumerated below in Section D, and encompass programs involving schools of medicine,
dentistry, nursing, other health-related schools that receive Federal assistance from both HHS
and any participating agency at the time of the alleged discrimination ("designated HHS
recipients"). As appropriate, similar duties are delegated for any entity that applies for Federal
assistance from an agency and which currently receives Federal assistance from HHS
("designated HHS applicant").
3. By this agreement, and subject to paragraphs (C)(1)-(2), participating agencies will
delegate to VA specific enforcement duties regarding Titles VI and IX, and similar laws that
prohibit discrimination in Federally assisted programs, (other than Section 504 of the
Rehabilitation Act of 1973, as amended), the enforcement duties delegated to the VA are
enumerated below in Section D, and encompass programs involving proprietary educational
institutions (i.e., private, for profit, non-college degree granting institutions that provide
technical and skilled training) that receive Federal assistance from both the VA and any
participating agency at the time of the alleged discrimination ("designated VA recipients"). As
appropriate, similar duties are delegated for any entity that applies for Federal assistance from
an agency and which currently receives Federal assistance from VA ("designated VA
applicant").
4. ED and HHS shall consult and determine, on a case-by-case basis, which agency
will investigate a complaint that alleges discrimination occurred in a school of medicine,
dentistry, or other health-related school, as well as the educational institution at large.
5. This agreement does not alter, amend, or otherwise affect any existing delegation
agreements between participating agencies and HHS under Title VI with respect to medical
facilities and noneducational institutions.
6. This agreement does not alter, amend, or otherwise affect any agreements between
agencies with respect to the enforcement of Section 504 of the Rehabilitation Act of 1973, as
amended, 29 U.S.C. § 794.
7. This agreement does not alter, amend, or otherwise affect the requirements of the
Department of Justice/Equal Employment Opportunity Commission (EEOC) regulation
concerning procedures for handling complaints of employment discrimination filed against
recipients of Federal financial assistance, commonly referred to as the "Title VI/Title VII rule."
28 C.F.R. §§ 42.601-42.613, 29 C.F.R. §§ 1691.1-1697.13. Complaints filed with a
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participating agency alleging that a recipient of Federal financial assistance engaged in
employment discrimination remain subject to the Title VI/Title VII rule, and therefore will be
referred directly to the EEOC by a participating agency.
D. Duties of ED, HHS, and VA as Delegatees
The participating agencies assign the following enforcement duties to ED, HHS, or the
VA, as appropriate, with respect to designated ED/HHS/VA recipients, respectively, as
defined in Section C, and/or other entities as specifically defined. Specifically, ED, HHS, and
VA shall:
1. Maintain complete files on all activities undertaken pursuant to this agreement,
including the compliance status of designated ED/HHS/VA applicants and recipients as
determined by complaint investigations, post-approval reviews, and other actions taken to
investigate, address, or resolve noncompliance.
2. Receive and review complaints alleging that designated ED/HHS/VA recipients
have discriminated in the operation of programs or activities in violation of Titles VI and IX;
attempt to obtain information necessary to make complaints complete, where appropriate; and
investigate complete complaints that are not patently frivolous or otherwise without merit. The
manner of investigation shall be at the discretion of ED/HHS/VA. Upon request by a
participating agency, ED/HHS/VA shall provide the requesting agency copies of
correspondence with the designated ED/HHS/VA recipient.
3. Issue written letters of findings of compliance or of noncompliance that (a) advise
the designated ED/HHS/VA applicant or recipient and, where appropriate, the complainant of
the results of the post-approval review or complaint investigation; (b) provide
recommendations, where appropriate, for achieving voluntary compliance; and (c) offer, where
appropriate, the opportunity for the designated ED/HHS/VA recipient to engage in
negotiations for achieving voluntary compliance. The governor of the State in which the
designated ED/HHS/VA applicant or recipient is located also will be notified if the letter of
findings of noncompliance is made pursuant to a statute requiring that the governor be given an
opportunity to secure compliance by voluntary means. ED/HHS/VA shall provide
simultaneously a copy of its letter(s) of findings of noncompliance to the referring participating
agency and to the Assistant Attorney General for Civil Rights.
4. If compliance by a designated applicant or recipient cannot be voluntarily achieved,
notify a participating agency of this determination within 5 business days. If only
ED/HHS/VA has authority to pursue a fund suspension, denial, or termination consistent with
42 U.S.C. § 2000d-1 or 29 U.S.C. § 1682, it may proceed consistent with its regulations.
ED/HHS/VA and a participating agency should consult with each other as to an appropriate
course of enforcement action. It is expected that the participating agency and ED/HHS/VA
will agree on how to proceed to secure compliance by the designated ED/HHS/VA recipient.
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a. If ED/HHS/VA and the participating agency agree, refer the matter to the
Assistant Attorney General, Civil Rights Division, Department of Justice, for review and
appropriate judicial action.
b. If both ED/HHS/VA and the participating agency have authority to pursue a
fund suspension, denial, or termination consistent with 42 U.S.C. § 2000d-1 or 29 U.S.C. §
1682, and if ED/HHS/VA and the participating agency agree to initiate such action, the
agencies shall determine whether an administrative hearing, if requested by the designated
ED/HHS/VA recipient, will be conducted jointly or by one agency on behalf of both. The
designated ED/HHS/VA recipient shall be notified of the agencies' proposed action, and
whether an administrative hearing, if desired, will be conducted jointly or by one agency on
behalf of both.
i. If the designated ED/HHS/VA recipient does not request a hearing,
ED/HHS/VA will render a final decision pursuant to its regulations and, within 10 days of
such decision, notify the participating agency and the Assistant Attorney General, Civil Rights
Division, Department of Justice, of such decision, and the reasons therefor.
ii. If an administrative hearing is conducted, within 5 business days of a
decision issued after such hearing, ED/HHS/VA will notify the Assistant Attorney General,
Civil Rights Division, Department of Justice (and the participating agency if such agency did
not participate), of the outcome of the hearing, the reasons for such decision, and of any action
taken against, or intended, with regard to the designated ED/HHS/VA recipient. In addition,
ED/HHS/VA will render a final decision pursuant to its regulations and, within 10 days of
such decision, notify the participating agency and the Assistant Attorney General, Civil Rights
Division, Department of Justice, of such decision, and the reasons therefor.
C. If ED/HHS/VA and the participating agency cannot agree on a course of
action, the agencies will notify the Assistant Attorney General, Civil Rights Division, U.S.
Department of Justice of such disagreement. Pursuant to Executive Order 12250, the Civil
Rights Division will seek to resolve the dispute between the agencies in a manner satisfactory
to both agencies.
5. Upon request of a participating agency, ED/HHS/VA shall provide letters of
findings for any complaint referred to ED/HHS/VA by a participating agency. In addition,
upon request, a participating agency shall be provided copies or reasonable access to inspect
and review files maintained by ED/HHS/VA with respect to designated recipients.
6. Continue or perform reviews of designated ED/HHS/VA applicants consistent with
paragraph (D)(3), when significant or unique issues arise during inquiries by the participating
agency.
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7. Conduct post-approval reviews of the programs or activities of certain designated
ED/HHS/VA recipients pursuant to a schedule established by ED/HHS/VA, and notify the
participating agency of the schedule as it pertains to them, and results thereof.
8. By November 15, or within 45 days of a request by a participating agency,
whichever is later, provide an oral or written summary of all actions taken with respect to
referrals by a participating agency during the prior fiscal year.
E. Duties of a Participating Agency
A participating agency shall:
1. Within 10 days of receipt of a complaint, determine whether the entity(ies) involved
are designated ED/HHS/VA recipient(s), and if so, refer such complaint to ED/HHS/VA, as
appropriate. In addition, if sufficient information is provided in the complaint, the
participating agency shall notify ED/HHS/VA whether the specific program(s) involved
receives Federal financial assistance from the participating agency. If ED/HHS/VA provides
supplemental information to the participating agency regarding the nature of the investigation,
the participating agency shall determine whether it provides Federal assistance to the specific
program(s) in issue within 20 days of a request by ED/HHS/VA.
2. Upon request by ED/HHS/VA, provide ED/HHS/VA, as appropriate, with
information, technical assistance and training necessary for it to perform the duties delegated
under this agreement. This information may include, but is not limited to:
a.
compliance information solely in a participating agency's possession or control;
b.
data on recipients' program operations, including eligibility requirements and/or
actual participants; and
C.
any material in a participating agency's possession that is relevant to an
evaluation of a designated recipient's compliance or noncompliance with Titles
VI and/or IX.
3. As part of pre-approval reviews of designated ED/HHS/VA applicants seeking
Federal assistance from a participating agency, the participating agency shall contact
ED/HHS/VA, as appropriate, to determine the status of compliance of the applicant.
In addition, if the participating agency's queries indicate the existence of noncompliance with
Title VI and/or Title IX, it shall immediately consult with ED/HHS/VA, as appropriate, to
determine which agency shall pursue the matter. It is expected that unique or significant issues
will be referred to ED/HHS/VA for investigation or review. A participating agency shall
supply all information collected and necessary for ED/HHS/VA to undertake such a review.
4. When ED/HHS/VA has notified the designated ED/HHS/VA applicant or recipient
in writing that compliance cannot be achieved by voluntary means and ED/HHS/VA has
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referred the matter to a participating agency, a participating agency shall make an independent
compliance determination, and consult with ED/HHS/VA, as appropriate. If only the
participating agency has authority to pursue a fund suspension, denial, or termination
consistent with 42 U.S.C. § 2000d-1 or 29 U.S.C. § 1682, it may proceed consistent with its
regulations. ED/HHS/VA and a participating agency should consult with each other as to an
appropriate course of enforcement action. It is expected that the participating agency and
ED/HHS/VA will agree on how to proceed to secure compliance by the designated
ED/HHS/VA recipient.
a. If ED/HHS/VA and the participating agency agree, refer the matter to the
Assistant Attorney General, Civil Rights Division, Department of Justice, for review and
appropriate judicial action.
b. If both ED/HHS/VA and the participating agency have authority to pursue a
fund suspension, denial, or termination consistent with 42 U.S.C. § 2000d-1 or 29 U.S.C. §
1682, and if ED/HHS/VA and the participating agency agree to initiate such action, the
agencies shall determine whether an administrative hearing, if requested by the designated
ED/HHS/VA recipient, will be conducted jointly or by one agency on behalf of both. The
designated ED/HHS/VA recipient shall be notified of the agencies' proposed action, and
whether an administrative hearing, if desired, will be conducted jointly or by one agency on
behalf of both.
i. If the designated ED/HHS/VA recipient does not request a hearing,
the participating agency will render a final decision pursuant to its regulations and, within 10
days of such decision, notify ED/HHS/VA and the Assistant Attorney General, Civil Rights
Division, Department of Justice, of such decision, and the reasons therefor.
ii. If an administrative hearing is conducted, within 5 business days of a
decision issued after such hearing, the participating agency will notify the Assistant Attorney
General, Civil Rights Division, Department of Justice (and ED/HHS/VA if such agency did
not participate), of the outcome of the hearing, the reasons for such decisions and of any action
taken against, or intended, with regard to the designated ED/HHS/VA recipient. In addition,
the participating agency will render a final decision pursuant to its regulations and, within 10
days of such decision, notify ED/HHS/VA and the Assistant Attorney General, Civil Rights
Division, Department of Justice, of such decision, and the reasons therefor.
c. If ED/HHS/VA and the participating agency cannot agree on a course of
action, the agencies will notify the Assistant Attorney General, Civil Rights Division, U.S.
Department of Justice of such disagreement. Pursuant to Executive Order 12250, the Civil
Rights Division will seek to resolve the dispute between the agencies in a manner satisfactory
to both agencies.
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F. Sharing of Data and Joint Activities
1. Apart from the responsibilities and obligations set forth in Sections D and E,
ED/HHS/VA and a participating agency shall share data on the status of compliance with
Titles VI and IX and similar statutes of all known applicants and recipients, as requested by the
other. Prior to any participating agency awarding assistance to an applicant, it shall consult
with ED/HHS/VA, as appropriate, to determine whether there are any outstanding findings of
noncompliance, conditions for the continued receipt of funds, or other facts that may affect an
award, or conditions attached thereto. ED/HHS/VA shall respond to a request, which may be
oral or in writing, within days, either orally or in writing.
2. Upon agreement, ED/HHS/VA and a participating agency may conduct jointly any
activity set forth in Sections D and E that is designated to be performed by one such agency.
For example, ED and a participating agency may jointly conduct investigations of complaints,
post-approval reviews of designated recipients or others, or pre-approval reviews. The
authority of either agency to act independently is not altered or otherwise affected by jointly
conducting any activity described herein.
3. ED/HHS/VA shall provide all letters of finding of noncompliance of recipients,
whether or not such entities are designated ED/HHS/VA recipients, to all participating
agencies.
G. Duties Unaffected by this Agreement
A participating agency will conduct investigations of complaints, pre-award reviews,
and post-award reviews as appropriate for all nondesignated ED/HHS/VA applicants and
recipients.
H. Effect on Prior Delegation
This agreement supersedes and replaces delegation agreements, and portions thereof,
between participating agencies and ED/HHS/VA with respect to Title VI and Title IX as they
apply to educational institutions.
I. Review and Modification
The provisions of this agreement shall be reviewed by all agencies one year after
implementation to determine whether modification is desired. Any modification shall be by
written mutual agreement of all parties. This agreement shall remain in effect until a
superceding agreement is executed.
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J. Approval
This agreement shall be approved by appropriate representatives of all agencies before
publication in the Federal Register.
[List names/titles of heads of participating agencies]