[Federal Register: October 29, 1999 (Volume 64, Number 209)]
[Proposed Rules]
[Page 58567-58606]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29oc99-29]

[[Page 58567]]
_______________________________________________________________________

Part III

Nondiscrimination on the Basis of Sex in Education Programs and
Activities Receiving Federal Financial Assistance; Proposed Rule
_______________________________________________________________________
Nuclear Regulatory Commission
Small Business Administration
National Aeronautics and Space Administration
Department of Commerce
Tennessee Valley Authority
Department of State
Agency for International Development
Department of Housing and Urban Development
Department of Justice
Department of Labor
Department of the Treasury
Department of Defense
National Archives and Records Administration
Department of Veterans Affairs
Environmental Protection Agency
General Services Administration
Department of the Interior
Federal Emergency Management Agency
National Science Foundation
National Foundation on the Arts and the Humanities
National Endowment for the Arts
National Endowment for the Humanities
Institute for Museum and Library Services
Corporation for National and Community Service
Department of Transportation


[[Page 58568]]


NUCLEAR REGULATORY COMMISSION

10 CFR Part 5

SMALL BUSINESS ADMINISTRATION

13 CFR Part 113

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1253

DEPARTMENT OF COMMERCE

15 CFR Part 8a

TENNESSEE VALLEY AUTHORITY

18 CFR Part 1317

DEPARTMENT OF STATE

22 CFR Part 146

AGENCY FOR INTERNATIONAL DEVELOPMENT

22 CFR Part 229

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 3

DEPARTMENT OF JUSTICE

28 CFR Part 54

DEPARTMENT OF LABOR

29 CFR Part 36

DEPARTMENT OF THE TREASURY

31 CFR Part 28

DEPARTMENT OF DEFENSE

32 CFR Part 196

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Part 1211

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 23

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 5

GENERAL SERVICES ADMINISTRATION

41 CFR Part 101-4

DEPARTMENT OF THE INTERIOR

43 CFR Part 41

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 19

NATIONAL SCIENCE FOUNDATION

45 CFR Part 618

NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Arts

45 CFR Part 1155

National Endowment for the Humanities

45 CFR Part 1171

Institute for Museum and Library Services

45 CFR Part 1182

CORPORATION FOR NATIONAL AND COMMUNITY SERVICE

45 CFR Part 2555

DEPARTMENT OF TRANSPORTATION

49 CFR Part 25


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

AGENCIES: Nuclear Regulatory Commission; Small Business Administration;
National Aeronautics and Space Administration; Department of Commerce;
Tennessee Valley Authority; Department of State; Agency for
International Development; Department of Housing and Urban Development;
Department of Justice; Department of Labor; Department of the Treasury;
Department of Defense; National Archives and Records Administration;
Department of Veterans Affairs; Environmental Protection Agency;
General Services Administration; Department of the Interior; Federal
Emergency Management Agency; National Science Foundation; National
Endowment for the Arts, National Endowment for the Humanities,
Institute for Museum and Library Services, National Foundation on the
Arts and the Humanities; Corporation for National and Community
Service; Department of Transportation.

ACTION: Notice of proposed rulemaking.

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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. The promulgation
of this proposed regulation will provide guidance to recipients of
Federal financial assistance who administer education programs or
activities. The provisions of this proposed regulation will also
promote consistent and adequate enforcement of Title IX by the agencies
identified above.

DATES: Comments must be received on or before December 28, 1999.

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 for the enforcement of Title IX 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 the Treasury (``Treasury'') and the National Archives
and Records Administration (``NARA'') are referencing their respective
procedures under Title VI of the Civil Rights Act of 1964 (42 U.S.C.
2000d, et seq.), which are virtually identical among the agencies.
Title IX is modeled after Title VI and the statutes have the same
statutory enforcement mechanisms. Although Treasury and NARA do not
have Title VI regulations, both entities 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 of proposed rulemaking.
In 1979 and 1980, two agencies published notices of proposed
rulemaking for Title IX, but the proposed rules were never issued as
final rules. On April 25, 1979, the Veteran's Administration published
a

[[Page 58569]]

notice of proposed rulemaking. See 44 FR 24320 (1979). On June 17,
1980, the Department of Justice published a notice of proposed
rulemaking. See 45 FR 41001 (1980). By participating in this notice of
proposed rulemaking, these agencies are initiating a new rulemaking
proceeding.

Additional Comment Information

Copies of this notice of proposed rulemaking 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 recipients, 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 of proposed rulemaking for several reasons: the history of
public participation in the development and congressional approval of
ED's regulations, ED's leadership role in Title IX enforcement,
judicial interpretations of ED's regulations, recipients' familiarity
with the regulations, and an interest in maintaining consistency of
interpretation of regulations enforcing Title IX. The regulations,
initially issued by the former Department of Health, Education, and
Welfare (``HEW'') (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. 40 FR 24128 (1975). Further, after the
final regulations were issued, but before they became effective,
Congress held six days of hearings to determine whether the regulations
were consistent with the statute. Sex Discrimination Regulations:
Hearings before the Subcomm. on Postsecondary Education of the House
Comm. 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 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, technical assistance, investigative 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 interpreted Title IX
based on ED's regulations. For example, in 1974, Congress amended the
statute after holding hearings on provisions in ED's proposed rule. See
20 U.S.C. 1681(a)(6). In 1982, the Supreme Court upheld that portion of
ED's regulations that prohibits discrimination by a recipient on the
basis of sex in its employment practices. See North Haven Bd. of Educ.
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
overrule the Supreme Court's decision in Grove City College v. Bell,
465 U.S. 555 (1984), and thus to make Title IX consistent with ED's
pre-Grove City interpretation of the statute. See S. Rep. No. 100-64,
at 2 (1987), reprinted in 1988 U.S.C.C.A.N. 3, 3-4. The recipient
community, Federal agencies, and the courts should have the benefit of
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 identical to ED's
regulations. This proposal addresses several statutory changes that are
not reflected in the existing (but soon to be modified) ED regulation,
one modification in order to be consistent with Supreme Court
precedent, and a few minor changes. 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 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 that ``[n]o person in the
United States 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 receiving
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 sex-based
discrimination, and that individuals have equal opportunities, without
regard to sex, 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 these Title IX
regulations, 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. See North Haven, 456 U.S. at 521 (stating that Title IX
``must [be] accord[ed] * * * a sweep as broad as its language'' to
realize goals of eliminating discrimination and promoting equal
opportunity); Cannon v. University of Chicago, 441 U.S. 677, 709 (1979)
(concluding that an implied private right of action was necessary for
Title IX's full enforcement); Franklin v. Gwinnett County Pub. Schs.,
503 U.S. 60 (1992) (concluding that sexual harassment violates Title
IX's proscription against sex discrimination). <SUP>1</SUP> Of course,
Title IX prohibits discrimination on the basis of sex in the operation
of, and the provision or exclusion of benefits by, education and
training programs conducted by noneducational institutions, including,
but not limited to, prisons, museums, job training institutes, and for
profit and nonprofit organizations.
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\1\ See Office for Civil Rights, Dep't of Educ., Sexual
Harassment Guidance: Harassment of Students by School Employees,
Other Students, or Third Parties, 62 FR 12034 (1997).
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Thus, for example, these proposed Title IX regulations will apply
to such diverse activities as a forestry workshop run by a state park
receiving funds from the Department of Interior; a boater

[[Page 58570]]

education program sponsored by a county parks and recreation department
receiving funding from the Coast Guard; a local course concerning how
to start a small business, sponsored by the state department of labor
that receives funding from the Small Business Administration; and,
state and local courses funded by the Federal Emergency Management
Agency in planning how to deal with disasters. It will also apply to a
museum lecture series when the museum receives a grant from the
Institute for Museum and Library Services, or a lecture series on the
history of dance given at a local school of ballet receiving funding
from the National Endowment for the Arts. Vocational training for
inmates in prisons receiving assistance from the Department of Justice
is another example of the type of program this proposed regulation will
cover. In short, these proposed regulations will apply to the
educational programs or activities of any entity receiving financial
assistance from the agencies promulgating this proposed regulation.
It should be noted that we have retained sections from the ED
regulation that impose deadlines for action by recipients. For example,
section ______.110 includes a deadline for educational institutions to
conduct a self-evaluation and section ______.225 includes a timetable
for completion of transitions by an educational 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 ED or the 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 with 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.
The definition of ``educational institution'' refers to a ``local
educational agency.'' The term ``local educational agency'' has been
recodified at 20 U.S.C. 8801(18), and this change has been made to the
definition of ``educational institution.''
The reference in the definition of ``Federal financial assistance''
to ``agreements'' includes ``cooperative agreements'' by agencies.
Section ______.110, entitled ``Remedial and affirmative action and
self-evaluation,'' is modified slightly by adding the phrase
``consistent with law.'' This entire regulation, of course, should be
interpreted consistent with governing legal decisions. Given recent,
numerous decisions by the Supreme Court and lower courts concerning
affirmative action, agencies should consult with the Department of
Justice regarding interpretations of this section.
A few matters should be noted with respect to assurances. First,
the method or practice of awarding Federal financial assistance varies
among the participating agencies. Some, but not all, agencies require a
formal application for Federal assistance prior to any award, and such
applications will contain the assurances required by section ______.115
of the proposed regulation. Other agencies award assistance through
instruments where the formal agreement or contract of assistance is the
only document executed by the recipient. In the latter instance, the
agreement or contract will include, as a condition of the award, the
required assurances of .115. The presence of an assurance in a
contract, agreement, or document other than ``application,'' wherein
the execution of such document includes the assurance of compliance as
a condition of the award, satisfies ______.115. Second, ______.115(b)'s
reference to Federal financial assistance ``extended to provide real
property or structures thereon, * * * or to provide personal
property,'' should be understood to include the provision of assistance
to aid in the acquisition and/or improvement of such property. Finally,
in order to maintain consistency among agencies regarding the text of
the assurance for compliance with Title IX, we modified ______.115(c)
to include the uniform text of the assurance. This text may be modified
at the discretion of the Office of Management and Budget (``OMB''), or
upon application by an agency and approval by OMB. In addition, the
actual text may be included in, as mentioned, a final contract or
agreement, or in a standard form that includes assurances relating to
other obligations.
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 Federal financial
assistance, is subject to Title IX.
Modifications of ED's existing regulations to conform to the
statutory amendments to Title IX are addressed in this subpart. Section
______.205 is amended to incorporate the expanded exemption for
entities controlled by religious institutions. Under the CRRA, the
exemption is no longer limited to educational institutions that are
controlled by religious organizations with tenets contrary to Title IX.
Instead, any educational 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.
Further, the exemption would apply to a particular education program
operated by a recipient if this separate program is subject to
religious tenets that are not consistent with Title IX. If a recipient
has obtained an exemption from ED, such exemption also may be submitted
to another funding agency as a basis for an exemption from the second
funding agency.
While it is not expected that many educational institutions will
have a transition plan, we have retained the text of sections
______.225 and ______ .230. In addition, the text of ______.225 has
been slightly modified to require that any transition plans be
submitted solely to the Department of Education.
A new section, ______.235, 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 ______.235(b) based on
amendments passed in 1976. 20 U.S.C. 1681(a)(7)-(9). Congress exempts
activities undertaken by the American Legion to operate Boys State,
Girls State, Boys Nation, and Girls 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,

[[Page 58571]]

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, 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, which defined ``program or activity'' in
restrictive terms. 465 U.S. at 572-74; S. Rep. No. 100-64, 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 program, not the entire college. Ibid. 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 Rehabilitation Act of 1973, as
amended, 29 U.S.C. 794. See S. Rep. No. 100-64, 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 ______.235(c), 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
entities that are a combination of any of those 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. 100-64, 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 an operation is educational or academic in nature, are
subject to Title IX's prohibition on discrimination. Thus, for example,
housing programs, a shuttle service, food service, and other commercial
operations are covered by Title IX if any part of the entity is a
recipient of Federal funds. 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. 100-64 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. 100-64, at 16-20, reprinted in 1988
U.S.C.C.A.N. at 18-22.
Moreover, regulatory language made superfluous by the enactment of
the CRRA has been omitted in the proposed rule. The Department of
Education's Title IX regulations, promulgated in 1975, defined
``recipient'' as an entity ``to whom Federal financial assistance is
extended directly or through another recipient and that operates an
education program or activity that receives or benefits from such
assistance.'' At that time, the words ``or benefits from'' were
necessary to clarify that all of the operations of a university or
other educational institution that receives Federal funds--not just the
particular programs receiving financial assistance--are covered by
Title IX's nondiscrimination requirements. As noted above, this
interpretation was rejected by the Supreme Court in 1984 in Grove City
College v. Bell, which held that Federal student aid established Title
IX jurisdiction only over the financial aid program, and not the entire
institution. However, Congress' 1988 enactment of the CRRA counteracted
this decision by defining ``program or activity'' to provide expressly
that Title IX covers all educational programs of a recipient
institution. Because of this statutory change, the words ``or benefits
from'' are no longer necessary as a regulatory matter and have thus
been omitted in the proposed common rule as superfluous. This deletion
does not affect the reach of Title IX.
Finally, it is important to note that the restored, broad
interpretation of ``program or activity'' does not in any way alter the
requirement of 20 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. 100-64,
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.'').
Section ______.235(d) reflects the ``abortion neutrality''
provision in the CRRA, commonly referred to as the Danforth amendment,
which provides: ``Nothing in this chapter 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 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 ______.235(d)(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,<SUP>2</SUP> however,
this provision does not allow recipients of Federal assistance to deny
medical procedures, benefits, services, or the use of facilities if
necessary to save the life of a pregnant woman, or for medical
complications arising from or related to an abortion.
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\2\ See 134 Cong. Rec. 353 (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 woman, Sen. Danforth replied that Sen. Metzenbaum's
characterizations were ``completely erroneous and totally without
foundation at all.''); 134 Cong. Rec. 2931 (1988) (statement of Rep.
Hawkins); id. at 2935 (statement of Rep. Jeffords); id. at 2945
(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 2948 (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.'').
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The second sentence of the Danforth amendment is incorporated in
______.235(d)(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

[[Page 58572]]

seek an abortion. This prohibition applies to any service or benefit
for an applicant (for enrollment or employment), student, or
employee.<SUP>3</SUP>
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\3\ This provision is consistent with the Danforth amendment and
congressional intent. Statements of numerous senators and
representatives, including Sen. Danforth and other sponsors,
reiterate the plain meaning of the prohibition, and treat the
imposition of penalties as one form of discriminatory treatment
against women who have sought or will seek an abortion. See 134
Cong. Rec. 242 (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 made their own choice for abortion.'')
(emphasis added); id. at 353 (statement of Sen. Wilson) ([The second
sentence of the Danforth amendment] was language which 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. 2945 (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 2948 (statement of Rep. Edwards). See also id.
at 2935 (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 2945 (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 2948 (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.'').
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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 .235(d) is added to the following provisions:
______.300(c)(3), ______.440, ______.445(b)(4), and ______.530(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 one sex by separately ranking
applicants on the basis of sex, or otherwise treat individuals
differently because of their 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 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 ______.450(d), which address athletic programs, apply only if
the recipient also does not receive funding from the Department of
Education; otherwise, such recipient is expected to have complied
within the time frames established by 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. Section ______.525(b)(2), which concerns the provision
of fringe benefits, is modified slightly in order to conform to
principles established by the Supreme Court under Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq.. The
Supreme Court has held that fringe benefit plans may not require higher
contributions from women than from men to receive the same benefits.
See City of Los Angeles Dept. of Water and Power v. Manhart, 435 U.S.
702 (1978). Further, benefit plans may not provide lower benefits to
women who made the same contributions as men. See Arizona Governing
Comm. v. Norris, 463 U.S. 1073 (1983).
Subpart F addresses the agencies' respective procedures for
implementation and enforcement of Title IX. Within 60 days of the
publication of these Title IX regulations as a final rule, each agency
will publish a notice in the Federal Register that identifies its
respective programs that are covered by these Title IX regulations.
Each agency will supplement or modify its notice of covered programs,
as appropriate, to reflect changes in coverage.
For those agencies that have regulations to enforce Title VI, such
procedures will be adopted and referenced. Titles 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 minor. For the Department
of the Treasury and NARA, the specific text is set forth herein since
neither has a Title VI regulation. The Corporation for Community and
National Service, which is the successor to ACTION, is subject to the
Title VI regulations promulgated by ACTION. See National and Community
Service Trust Act of 1993, Public Law 103-82, section 203(c)(2), 107
Stat. 785, 892; 45 CFR Part 1203. It also should be noted that some
agencies, based on other Federal laws, have promulgated regulations
that similarly prohibit discrimination on the basis of sex in programs
that receive Federal financial assistance. In the absence of a specific
agency adoption, it should be understood that such existing regulations
remain in force and are unaffected by this proposed regulation.

Applicable Executive Orders and Regulatory Certifications

This proposed Title IX regulation has been reviewed by the Equal
Employment Opportunity Commission pursuant to Executive Order 12067.
This proposed Title IX regulation has been drafted and reviewed in
accordance with Executive Order 12866, section 1(b), Principles of
Regulation. The participating agencies have determined that this rule
is a ``significant regulatory action'' under Executive Order 12866,
section 3(f), Regulatory Planning and Review, yet it is not
``economically significant'' as defined in section 3(f)(1), and,
therefore, the information enumerated in section 6(a)(3)(C) of the
order is not required. Pursuant to Executive order 12866, this rule has
been reviewed by OMB.
The participating agencies have determined that this Title IX
regulation is not a major rule as defined by the Small Business
Regulatory 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-

[[Page 58573]]

based companies in domestic and export markets. All of the entities
that are subject to these regulations are already covered by Title IX.
While these regulations address standards of liability and require that
recipients establish grievance procedures and take other action, a
substantial number of entities already are subject to other agencies'
Title IX regulations that impose the same requirements. Accordingly,
these regulations will not impose new obligations on many recipients.
These Title IX regulations enforce a statutory prohibition on
discrimination on the basis of sex and, therefore, the participating
agencies certify that no actions were deemed necessary under the
Unfunded Mandates Reform Act of 1995. Furthermore, these regulations
will not result in the expenditure by State, local, and tribal
governments, in the aggregate, 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 participating agencies, in accordance with the Regulatory
Flexibility Act, 5 U.S.C. 605(b), have reviewed these Title IX
regulations and by approving certify that these regulations 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.
This is not a ``major rule,'' nor will it have a significant
economic impact on a substantial number of small entities, in large
part because these regulations do not impose any new substantive
obligations on Federal funding recipients. All recipients of Federal
funding that operate educational programs or activities have been bound
by Title IX's antidiscrimination provision since 1972. Individual
participants in such programs have thus long had the right to be free
from sex discrimination, and have enjoyed the corollary ability to file
an administrative complaint and/or a private lawsuit when they believe
their rights to have been violated. The common rule merely ensures that
such individuals receive notice regarding their rights under Title IX
and outlines a process for handling administrative complaints for those
agencies that do not yet have such a process in place for Title IX.
Indeed, by identifying a coherent scheme for resolving complaints
administratively, this proposal may help prevent costly private
litigation.
Entities receiving funding from one of the four Federal agencies
that already have Title IX regulations will face no new requirements
under the common rule. Those entities receiving funding from an agency
that does not currently have Title IX regulations will now be required
to notify their students and employees that sex discrimination is
prohibited and to adopt and publish grievance procedures outlining the
process for filing an administrative complaint.
To the extent these requirements will be new for some entities,
they are not burdensome. Indeed, Federal funding recipients are already
required to have most of these procedures under other civil rights
statutes, and would generally fulfill the requirements of the common
rule by including Title IX within their existing processes. Similarly,
the common rule also requires a covered recipient to designate an
employee to coordinate Title IX compliance efforts. In many, if not
most, cases, that person would be the same person currently responsible
for handling complaints under the other antidiscrimination laws.

Paperwork Reduction Act of 1995

Sections ______.110, ______.115, and ______.230 contain information
collection requirements. As required by the Paperwork Reduction Act of
1995, 44 U.S.C. 3507(d), the Department of Justice, on behalf of the
participating agencies, has submitted a copy of these sections to OMB
for its review.
Collection of Information: Self-Evaluations
A recipient educational institution is required within one year of
the effective date of these regulations to evaluate its current
services, policies, and practices and the effects thereof concerning
admission of students, treatment of students, and employment of both
academic and non-academic personnel in connection with the recipient's
education program or activity to determine whether they meet the
requirements of Title IX, and to the extent the requirements are not
met, to make the required modifications. In addition, recipients are to
maintain this self-evaluation on file for at least three years
following completion of the evaluation, and to provide to the
designated agency official upon request, a description of any
modifications and remedial steps made under the self-evaluation
requirements. These requirements are the most efficient means of self-
evaluation and recordkeeping.
Nearly all educational institutions affected by this provision have
already complied or are required to comply with this provision under
Title IX regulations promulgated by the U.S. Department of Education.
The number of recipient educational institutions that have not
previously complied or are required to comply is estimated as fewer
than ten. The public reporting and recordkeeping burden for this
collection of information for those remaining recipients is estimated
to be thirty hours in order to conduct self-evaluations. This burden is
incurred when a recipient is required to evaluate their current
services, policies, and practices for compliance with Title IX. It
should be noted that this calculation does not include the number of
recipients which are already required to do self-evaluations under
Title IX regulations promulgated by the U.S. Department of Education.
Based on data provided by all participating agencies, the estimated
burden for reading and completing this form was calculated as follows:


Respondents......................................................... 5
Responses (times)................................................... 1
Hours per respondent (times)........................................ 6
---
Annual reporting burden (hours)................................. 30


Collection of Information: Assurances of Compliance
These regulations require applications for Federal financial
assistance for an education program or activity to be accompanied by an
assurance from the applicant or recipient that each education program
or activity operated by the applicant or recipient and to which these
Title IX regulations apply will be operated in compliance with these
regulations. Completing this form is the clearest, most effective, and
least burdensome means of placing a recipient on notice of its
obligations to comply with Title IX.
The public reporting and recordkeeping burden for this collection
of information for all participating agencies is estimated to be 22,738
hours in order to read and complete the assurance form. This burden is
incurred when an applicant or recipient completes an application for
Federal financial assistance from a participating agency for the first
time or if there is a break in continuity of assistance from such
agency. It is estimated that approximately 25% of recipients seek
assistance from more than one Federal agency; thus, the Department of
Justice estimates that assurances would be required an average of 1.25
times rather than once, per recipient. It should be noted that this
calculation does not include the number of recipients at agencies,
including the Departments of Commerce, Interior, and Labor, which

[[Page 58574]]

already use OMB assurance forms or other assurance forms previously
approved by OMB that include text regarding compliance with Title IX.
Based on data provided by all participating agencies, the estimated
burden for reading and completing this form was calculated as follows:


Respondents.................................................. 107,000
Responses (times)............................................ 1.25
Hours per respondent (times 10 minutes)...................... .17
----------
Annual reporting burden (hours).......................... 22,738


Collection of Information: Transition Plans
A recipient educational institution is required to submit a
transition plan if it has admitted students of only one sex as regular
students as of June 23, 1972, or admitted students of only 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. The transition plan requirements listed in this rule are the most
efficient means of preparing transition plans and related
recordkeeping.
All educational institutions affected by this provision have
already complied or are required to comply with this provision under
Title IX regulations promulgated by the U.S. Department of Education.
There are no new educational institutions anticipated that would fall
into this category. The public reporting and recordkeeping burden for
this collection of information for recipient educational institutions
is therefore estimated to be zero hours in order to develop transition
plans. This burden is incurred when a recipient is required to develop
and implement a transition plan. It should be noted that this
calculation does not include the number of recipients which are already
required to do transition plans under Title IX regulations promulgated
by the U.S. Department of Education.
Based on data provided by all participating agencies, the estimated
burden for reading and completing this form was calculated as follows:


Respondents......................................................... 0
Responses (times)................................................... 1
Hours per respondent (times)........................................ 8
---
Annual reporting burden (times hour)............................ 0



Organizations and individuals desiring to submit comments on these
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, D.C. 20503; Attention: Desk Officer for
U.S. Department of Justice.
The Department of Justice will consider comments by the public on
these proposed collections of information in--
<bullet> Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
participating agencies, including whether the information will have a
practical use;
<bullet> Evaluating the accuracy of the participating agencies'
collective estimate of the burden of the proposed collection of
information, including the validity of the methodology and assumptions
used;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> Minimizing the burden of collection of information on
those who are to respond, including through the use of appropriate
automated electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collections of
information contained in these proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment to the Department of Justice or
participating agencies on the proposed regulation.

Text of the Proposed Common Rule

The text of this common rule as proposed in this document appears
below:

[PART/Subpart] ______--NONDISCRIMINATION ON THE BASIS OF SEX IN
EDUCATION PROGRAMS AND ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE

Subpart A--Introduction

Sec.
______.100 Purpose and effective date
______.105 Definitions
______.110 Remedial and affirmative action and self-evaluation
______.115 Assurance required
______.120 Transfers of property
______.125 Effect of other requirements
______.130 Effect of employment opportunities
______.135 Designation of responsible employee and adoption of
grievance procedures
______.140 Dissemination of policy

Subpart B--Coverage

______.200 Application
______.205 Educational institutions and other entities controlled
by religious organizations
______.210 Military and merchant marine educational institutions
______.215 Membership practices of certain organizations
______.220 Admissions
______.225 Educational institutions eligible to submit transition
plans
______.230 Transition plans
______.235 Statutory amendments

Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited

______.300 Admission
______.305 Preference in admission
______.310 Recruitment

Subpart D--Discrimination on the Basis of Sex in Education Programs and
Activities Prohibited

______.400 Education programs and activities
______.405 Housing
______.410 Comparable facilities
______.415 Access to course offerings
______.420 Access to schools operated by LEAs
______.425 Counseling and use of appraisal and counseling materials
______.430 Financial assistance
______.435 Employment assistance to students
______.440 Health and insurance benefits and services
______.445 Marital or parental status
______.450 Athletics
______.455 Textbooks and curricular material

Subpart E--Discrimination on the Basis of Sex in Employment in
Education Programs and Activities Prohibited

______.500 Employment
______.505 Employment criteria
______.510 Recruitment
______.515 Compensation
______.520 Job classification and structure
______.525 Fringe benefits
______.530 Marital or parental status
______.535 Effect of state or local law or other requirements
______.540 Advertising
______.545 Pre-employment inquiries
______.550 Sex as a bona fide occupational qualification

Subpart F--Procedures

______.600 Notice of covered programs
Authority: 20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688.

Subpart A--Introduction

Section ______.100 Purpose and Effective Date

The purpose of these Title IX regulations is to effectuate Title IX
of the Education Amendments of 1972, as amended (except sections 904
and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686,
1687, 1688), 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

[[Page 58575]]

sponsored by an educational institution as defined in these Title IX
regulations. The effective date of these Title IX regulations shall be
[30 days after publication of the final rule].

Section ______.105 Definitions

As used in these Title IX regulations, the term:
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.
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.
Applicant means one who submits an application, request, or plan
required to be approved by an official of the Federal agency that
awards Federal financial assistance, or by a recipient, as a condition
to becoming a recipient.
Designated agency official means [to be inserted by agency].
Educational institution means a local educational agency (LEA) as
defined by 20 U.S.C. 8801(18), a preschool, a private elementary or
secondary school, or an applicant or recipient that is an institution
of graduate higher education, an institution of undergraduate higher
education, an institution of professional education, or an institution
of vocational education, as defined in this section.
Federal financial assistance means any of the following, when
authorized or extended under a law administered by the Federal agency
that awards such assistance:
(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 that has as one
of its purposes the provision of assistance to any education program or
activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) 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;
(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.
Institution of professional education means an institution (except
any institution of undergraduate higher education) that 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 Education.
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 that certifies credentials or offers degrees,
but that may or may not offer academic study.
Institution of vocational education means a school or institution
(except an institution of professional or graduate or undergraduate
higher education) that 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 institution offers certificates, diplomas, or degrees and
whether or not it offers full-time study.
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 that operates an education program or
activity that receives such assistance, including any subunit,
successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public
Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-
1688) (except sections 904 and 906 thereof), as amended by section 3 of
Public Law 93-568, 88 Stat. 1855, by section 412 of the Education
Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3
of Pub. L. 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683,
1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at [to be
inserted by agency].
Transition plan means a plan subject to the approval of the
Secretary of Education pursuant to section 901(a)(2) of the Education
Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational
institution operates in making the transition from being an educational
institution that admits only students of one sex to being one that
admits students of both sexes without discrimination.

Section ______.110 Remedial and Affirmative Action and Self-Evaluation

(a) Remedial action. If the designated agency official 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 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 consistent with law to overcome
the effects of conditions that resulted in limited participation
therein by persons of a particular sex. Nothing in these Title IX
regulations shall be interpreted to alter any affirmative action
obligations that a recipient may have under Executive Order 11246, 3
CFR,

[[Page 58576]]

1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR,
1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR,
1966-1970 Comp., p. 803; as amended by Executive Order 12087, 3 CFR,
1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978
Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall,
within one year of [the effective date of these Title IX regulations]:
(1) Evaluate, in terms of the requirements of these Title IX
regulations, 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 that do not or may
not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any
discrimination that 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 designated agency official upon
request, a description of any modifications made pursuant to paragraph
(c)(2) of this section and of any remedial steps taken pursuant to
paragraph (c)(3) of this section.

Section ______.115 Assurance Required

(a) General. Every application for Federal financial assistance for
any education program or activity shall as a condition of its approval
contain or be accompanied by an assurance from the applicant or
recipient, satisfactory to the designated agency official, that each
education program or activity operated by the applicant or recipient
and to which these Title IX regulations apply will be operated in
compliance with these Title IX regulations. An assurance of compliance
with these Title IX regulations shall not be satisfactory to the
designated agency official if the applicant or recipient to whom such
assurance applies fails to commit itself to take whatever remedial
action is necessary in accordance with Sec. ______.110(a) to eliminate
existing discrimination on the basis of sex or to eliminate the effects
of past discrimination whether occurring prior to or subsequent to the
submission to the designated agency official 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. (1) The assurances required by paragraph (a) of this
section, which may be included as part of a document that addresses
other assurances or obligations, shall include that the applicant or
recipient ``will comply with all Federal statutes relating to
nondiscrimination. These include but are not limited to: * * * Title IX
of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683,
1685-1688).''
(2) The designated agency official will specify the extent to which
such assurances will be required of the applicant's or recipient's
subgrantees, contractors, subcontractors, transferees, or successors in
interest.

Section ______.120 Transfers of Property

If a recipient sells or otherwise transfers property financed in
whole or in part with Federal financial assistance to a transferee that
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 Secs. ______.205 through ______.235(a).

Section ______.125 Effect of Other Requirements

(a) Effect of other Federal provisions. The obligations imposed by
these Title IX regulations are independent of, and do not alter,
obligations not to discriminate on the basis of sex imposed by
Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by
Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by
Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by
Executive Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by
Executive Order 12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855
of the Public Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay
Act of 1963 (29 U.S.C. 206); and any other Act of Congress or Federal
regulation.
(b) Effect of State or local law or other requirements. The
obligation to comply with these Title IX regulations is not obviated or
alleviated by any State or local law or other requirement that 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 these Title IX regulations is not obviated or
alleviated by any rule or regulation of any organization, club,
athletic or other league, or association that 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 that
receives Federal financial assistance.

Section ______.130 Effect of Employment Opportunities

The obligation to comply with these Title IX regulations 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.

Section ______.135 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 these Title IX
regulations, including any investigation of any complaint communicated
to such recipient alleging its noncompliance with these Title IX
regulations or alleging any actions that would be prohibited by these
Title IX regulations. The recipient shall notify all its students and
employees of 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

[[Page 58577]]

student and employee complaints alleging any action that would be
prohibited by these Title IX regulations.

Section ______.140 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 that it operates, and that it is required by
Title IX and these Title IX regulations not to discriminate in such a
manner. Such notification shall contain such information, and be made
in such manner, as the designated agency official finds necessary to
apprise such persons of the protections against discrimination assured
them by Title IX and these Title IX regulations, 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 Secs. ______.300 through 310 do not apply to the recipient, and
that inquiries concerning the application of Title IX and these Title
IX regulations to such recipient may be referred to the employee
designated pursuant to Sec. ______.135, or to the 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 these Title IX regulations] or of the date these Title IX
regulations first apply 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 paragraph (a) of this section in
each announcement, bulletin, catalog, or application form that 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 paragraph (b)(1) of this section that 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 these Title IX regulations.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described in
paragraph (b)(1) 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 shall
require such representatives to adhere to such policy.

Subpart B--Coverage

Section ______.200 Application

Except as provided in Secs. ______.205 through ______.235(a) of
this subpart, these Title IX regulations apply to every recipient and
to each education program or activity operated by such recipient that
receives Federal financial assistance.

Section ______.205 Educational Institutions and Other Entities
Controlled by Religious Organizations

(a) Exemption. These Title IX regulations do not apply to any
operation of an educational institution or other entity that is
controlled by a religious organization to the extent that application
of these Title IX regulations would not be consistent with the
religious tenets of such organization.
(b) Exemption claims. An educational institution or other entity
that wishes to claim the exemption set forth in paragraph (a) of this
section shall do so by submitting in writing to the designated agency
official a statement by the highest-ranking official of the
institution, identifying the provisions of these Title IX regulations
that conflict with a specific tenet of the religious organization.

Section ______.210 Military and Merchant Marine Educational
Institutions

These Title IX regulations do 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.

Section ______.215 Membership Practices of Certain Organizations.

(a) Social fraternities and sororities. These Title IX regulations
do not apply to the membership practices of social fraternities and
sororities that are exempt from taxation under section 501(a) of the
Internal Revenue Code of 1954, 26 U.S.C. 501(a), 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. These
Title IX regulations do not apply to the membership practices of the
Young Men's Christian Association (YMCA), the Young Women's Christian
Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire
Girls.
(c) Voluntary youth service organizations. These Title IX
regulations do not apply to the membership practices of a voluntary
youth service organization that is exempt from taxation under section
501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), 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.

Section______.220 Admissions

(a) Admissions to educational institutions prior to June 24, 1973,
are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this
section, Secs. ______.225 and ______.230, and Secs. ______.300 through
______.310, each administratively separate unit shall be deemed to be
an educational institution.
(c) Application of Secs. ______.300 through ______.310. Except as
provided in paragraphs (d) and (e) of this section, Secs. ______.300
through ______.310 apply to each recipient. A recipient to which
Secs. ______.300 through ______.310 apply shall not discriminate on the
basis of sex in admission or recruitment in violation of
Secs. ______.300 through ______.310.
(d) Educational institutions. Except as provided in paragraph (e)
of this section as to recipients that are educational institutions,
Secs. ______.300 through ______.310 apply 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.
Secs. ______.300 through ______.310 do not apply to any public
institution of undergraduate higher education that traditionally and
continually from its establishment has had a policy of admitting
students of only one sex.

[[Page 58578]]

Section______.225 Educational Institutions Eligible To Submit
Transition Plans

(a) Application. This section applies to each educational
institution to which Secs. ______.300 through .310 apply that:
(1) Admitted students of only one sex as regular students as of
June 23, 1972; or
(2) Admitted students of only 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 Secs. ______.300 through
______.310.

Section______.230 Transition Plans

(a) Submission of plans. An institution to which Sec. ______.225
applies and that 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 of
Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on
Education 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.
(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 Sec. ______.225 applies shall result in treatment of applicants
to or students of such recipient in violation of Secs. ______.300
through ______.310 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 Sec. ______.225 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
that emphasize the institution's commitment to enrolling students of
the sex previously excluded.

Section______.235 Statutory Amendments

(a) This section, which applies to all provisions of these Title IX
regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in
connection with the organization or operation of any Boys State
conference, Boys Nation conference, Girls State conference, or Girls
Nation conference;
(2) Any program or activity of a secondary school or educational
institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation
conference, Girls State conference, or Girls Nation conference; or (ii)
The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational
institution, but if such activities are provided for students of one
sex, opportunities for reasonably comparable activities shall be
provided to students of the other sex;
(4) Any scholarship or other financial assistance awarded by an
institution of higher education to an individual because such
individual has received such award in a single-sex pageant based upon a
combination of factors related to the individual's personal appearance,
poise, and talent. The pageant, however, must comply with other
nondiscrimination provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs
(c)(1)(i) through (iv) of this section, any part of which is extended
Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other
instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes
such assistance and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution,
or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title
20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(1) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(B) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(iv) Any other entity that is established by two or more of the
entities described in paragraphs (c)(1)(i), (ii), or (iii) of this
section.
(2)(i) Program or activity does not include any operation of an
entity that is controlled by a religious organization if the
application of 20 U.S.C. 1681 to such operation would not be consistent
with the religious tenets of such organization.
(ii) For example, all of the operations of a college, university,
or other postsecondary institution, including but not limited to
traditional educational operations, faculty and student housing, campus
shuttle bus service, campus restaurants, the bookstore, and other
commercial activities are part of a ``program or activity'' subject to
these Title IX regulations if the college, university, or other
institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations 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. Medical

[[Page 58579]]

procedures, benefits, services, and the use of facilities, necessary to
save the life of a pregnant woman or to address complications related
to an abortion are not subject to this section.
(2) 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 received any benefit or service related to
a legal abortion. Accordingly, subject to paragraph (d)(1) of this
section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic,
extracurricular, research, occupational training, employment, or other
educational program or activity operated by a recipient that receives
Federal financial assistance because such individual has sought or
received, or is seeking, a legal abortion, or any benefit or service
related to a legal abortion.

Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited

Section ______.300 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 Secs. ______.300 through ______.310 apply, except as
provided in Secs. ______.225 and ______.230.
(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 Secs. ______.300 through ______.310
apply 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 that 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 program or activity
in question and alternative tests or criteria that 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
Secs. ______.300 through ______.310 apply:
(1) Shall not apply any rule concerning the actual or potential
parental, family, or marital status of a student or applicant that
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 that so
discriminates or excludes;
(3) Subject to Sec. ______.235(d), 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) 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
these Title IX regulations.

Section ______.305 Preference in Admission

A recipient to which Secs. ______.300 through______.310 apply shall
not give preference to applicants for admission, on the basis of
attendance at any educational institution or other school or entity
that 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 Secs. ______.300 through ______.310.

Section ______.310 Recruitment

(a) Nondiscriminatory recruitment. A recipient to which
Secs. ______.300 through ______.310 apply 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 Sec. ______.110(a), and may choose to
undertake such efforts as affirmative action pursuant to Sec.
______.110(b).
(b) Recruitment at certain institutions. A recipient to which
Secs. ______.300 through ______.310 apply shall not recruit primarily
or exclusively at educational institutions, schools, or entities that
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 Secs. ______.300 through ______.310.

Subpart D--Discrimination on the Basis of Sex in Education Programs
and Activities Prohibited

Section ______.400 Education Programs and Activities

(a) General. Except as provided elsewhere in these Title IX
regulations, 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 that receives Federal financial assistance. Sections
______.400 through ______.455 do not apply to actions of a recipient in
connection with admission of its students to an education program or
activity of a recipient to which Secs. ______.300 through ______.310 do
not apply, or an entity, not a recipient, to which Secs. ______.300
through ______.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in Secs. ______.400
through ______.455, 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
that 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 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

[[Page 58580]]

similar legal instruments, or by acts of foreign governments and
restricted to members of one sex, that are designed to provide
opportunities to study abroad, and that are awarded to students who are
already matriculating at or who are graduates of the recipient
institution; Provided, that a recipient educational institution that
administers or assists in the administration of such scholarships,
fellowships, or other awards that 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 (d)
applies to any recipient that requires participation by any applicant,
student, or employee in any education program or activity not operated
wholly by such recipient, or that 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 that these Title IX regulations would prohibit such
recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.

Section ______.405 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 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 that provided by such recipient.
(2)(i) 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:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency,
organization, or person that provides all or part of such housing to
students of only one sex.

Section ______.410 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.

Section ______.415 Access to Course Offerings

(a) 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.
(b)(1) 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 these Title IX regulations]. 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 these Title IX regulations].
(2) This section does not prohibit grouping of students in physical
education classes and activities by ability as assessed by objective
standards of individual performance developed and applied without
regard to sex.
(3) 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.
(4) 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 that do not have
such effect.
(5) Portions of classes in elementary and secondary schools that
deal exclusively with human sexuality may be conducted in separate
sessions for boys and girls.
(6) Recipients may make requirements based on vocal range or
quality that may result in a chorus or choruses of one or predominantly
one sex.

Section ______.420 Access to Schools Operated By LEAs

A recipient that 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.

Section ______.425 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 that
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 that 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 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

[[Page 58581]]

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.

Section ______.430 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 amounts or types of such
assistance, limit eligibility for such assistance that 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 that provides assistance to any of such
recipient's students in a manner that discriminates on the basis of
sex; or
(3) Apply any rule or assist in application of any rule concerning
eligibility for such assistance that 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 that
require 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; 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) A recipient may provide separate athletic scholarships or
grants-in-aid for members of each sex as part of separate athletic
teams for members of each sex to the extent consistent with this
paragraph (c) and Sec. ______.450.

Section ______.435 Employment Assistance to Students

(a) Assistance by recipient in making available outside employment.
A recipient that 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 that discriminates on the basis of sex in its employment
practices.
(b) Employment of students by recipients. A recipient that employs
any of its students shall not do so in a manner that violates
Secs. ______.500 through ______.550.

Section ______.440 Health and Insurance Benefits and Services

Subject to Sec. ______.235(d), in 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 that
would violate Secs. ______.500 through ______.550 if it were provided
to employees of the recipient. This section shall not prohibit a
recipient from providing any benefit or service that may be used by a
different proportion of students of one sex than of the other,
including family planning services. However, any recipient that
provides full coverage health service shall provide gynecological care.

Section ______.445 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 that 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 as 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 that 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 Sec. ______.235(d), a 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 that 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 that 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 as
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 that she held when the leave began.

[[Page 58582]]

Section ______.450 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 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 these Title IX regulations, 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. (1) A recipient that 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 designated
agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition
effectively accommodate the interests and abilities of members of both
sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive
facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, 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
designated 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 that 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 these Title IX regulations]. A recipient that
operates or sponsors interscholastic, intercollegiate, club, or
intramural athletics at the secondary or postsecondary 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 these
Title IX regulations].

Section ____.455 Textbooks and Curricular Material

Nothing in these Title IX regulations 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

Section ____.500 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 that receives 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 that 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 Secs. ____.500
through ____.550, 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 that admits as students only or predominantly members of one
sex, if the giving of such preferences has the effect of discriminating
on the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of Secs. ____.500 through ____.550
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.

Section ____.505 Employment Criteria

A recipient shall not administer or operate any test or other
criterion for any employment opportunity that 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.

Section ____.510 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

[[Page 58583]]

presently discriminating on the basis of sex in the recruitment or
hiring of employees, or has been found to have so discriminated in the
past, 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 that 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 Secs. ____.500
through ____.550.

Section ____.515 Compensation

A recipient shall not make or enforce any policy or practice that,
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 that are performed under similar working
conditions.

Section ____.520 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 that classify persons on the basis of
sex, unless sex is a bona fide occupational qualification for the
positions in question as set forth in Sec. ____.550.

Section ____.525 Fringe Benefits

(a) ``Fringe benefits'' defined. For purposes of these Title IX
regulations, 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 not subject to the provision of Sec. ____.515.
(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 that does not provide for equal periodic benefits for members of
each sex and 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 that establishes different optional or compulsory
retirement ages based on sex or that otherwise discriminates in
benefits on the basis of sex.

Section ____.530 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 that 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
Sec. ____.235(d), a recipient shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy, 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 that 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 time, at the conclusion of which the employee
shall be reinstated to the status that 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.

Section ____.535 Effect of State or Local Law or Other Requirements

(a) Prohibitory requirements. The obligation to comply with
Secs. ____.500 through ____.550 is not obviated or alleviated by the
existence of any State or local law or other requirement that imposes
prohibitions or limits upon employment of members of one sex that are
not imposed upon members of the other sex.
(b) Benefits. A recipient that 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.

Section ____.540 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.

Section ____.545 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
these Title IX regulations.

Section ____.550 Sex as a Bona Fide Occupational Qualification

A recipient may take action otherwise prohibited by Secs. ____.500
through ____.550 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 that 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 in a locker room or toilet facility used only by
members of one sex.

[[Page 58584]]

Subpart F--Procedures

Section ____.600 Notice of Covered Programs

Within 60 days of [the publication as a final rule of these Title
IX regulations], each Federal agency that awards Federal financial
assistance shall publish in the Federal Register a notice of the
programs covered by these Title IX regulations. Each such Federal
agency shall periodically republish the notice of covered programs to
reflect changes in covered programs. Copies of this notice also shall
be made available upon request to the Federal agency's office that
enforces Title IX.

Proposed Adoption of the Common Rule

The proposed adoption of the common rule by the participating
agencies, as modified by agency-specific text, is set forth below:

NUCLEAR REGULATORY COMMISSION

10 CFR Part 5

FOR FURTHER INFORMATION CONTACT: Irene P. Little, Office of Small
Business and Civil Rights, U.S. Nuclear Regulatory Commission,
Washington, D.C. 20555, (301) 415-7380.

List of Subjects in 10 CFR Part 5

Administrative practice and procedure, Buildings and facilities,
Civil rights, Colleges and universities, Education of individuals with
disabilities, Education, Educational facilities, Educational research,
Educational study programs, Equal educational opportunity, Equal
employment opportunity, Graduate fellowship program, Grant programs--
education, Individuals with disabilities, Investigations, Reporting and
recordkeeping requirements, Sex discrimination, State agreement
program, Student aid, Women.

Dated: January 8, 1999.
William D. Travers,
Executive Director for Operations.

For the reasons stated in the preamble, the Nuclear Regulatory
Commission proposes to amend 10 CFR, chapter I, as follows:
1. Part 5 is added as set forth at the end of the common preamble
to read as follows:

PART 5--NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS
AND ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE

Subpart A--Introduction

Sec.

5.100 Purpose and effective date
5.105 Definitions
5.110 Remedial and affirmative action and self-evaluation
5.115 Assurance required
5.120 Transfers of property
5.125 Effect of other requirements
5.130 Effect of employment opportunities
5.135 Designation of responsible employee and adoption of grievance
procedures
5.140 Dissemination of policy

Subpart B--Coverage

5.200 Application
5.205 Educational institutions and other entities controlled by
religious organizations
5.210 Military and merchant marine educational institutions
5.215 Membership practices of certain organizations
5.220 Admissions
5.225 Educational institutions eligible to submit transition plans
5.230 Transition plans
5.235 Statutory amendments

Subpart C--Discrimination on the Basis of Sex in Admission and
Recruitment Prohibited

5.300 Admission
5.305 Preference in admission
5.310 Recruitment

Subpart D--Discrimination on the Basis of Sex in Education Programs and
Activities Prohibited

5.400 Education programs and activities
5.405 Housing
5.410 Comparable facilities
5.415 Access to cours