4000-01-U

DEPARTMENT OF EDUCATION

Office for Civil Rights; Single-Sex Classes and Schools: Guidelines on Title IX Requirements

AGENCY: Department of Education.

ACTION: Guidelines on current title IX requirements related to single-sex classes and schools.

SUMMARY:   On January 8, 2002, the President signed into law the No Child Left Behind Act   of 2001, which reauthorized the Elementary and Secondary Act of 1965. Section   5131(a)(23) of the Elementary and Secondary Education Act allows local educational   agencies (LEAs) to use Innovative Programs funds to support same-gender schools   and classrooms consistent with applicable law. It also requires the Department,   within 120 days of enactment, to issue guidelines for LEAs regarding the applicable   law on single-sex classes and schools. This notice fully implements Congress's   mandate by describing and explaining the current statutory and regulatory requirements   relating to single-sex classes and schools.

FOR FURTHER   INFORMATION CONTACT: Jeanette J. Lim, Office for Civil Rights, U.S. Department of Education, 400 Maryland   Avenue, S.W., room 5036, Mary E. Switzer Building, Washington, DC 20202-2899.   Telephone: (202) 205-8635 or 1-800-421-3481.

If you use a telecommunications device for the deaf (TDD), you may call 1-877-521-2172.   For additional copies of this document, you may call OCR's Customer Service   Team at (202) 205-5413 or 1-800-421-3481. These Guidelines will also be available   at OCR's site on the Internet at:

www.ed.gov/about/offices/list/ocr/index.html

 Individuals  with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person    listed under FOR FURTHER INFORMATION CONTACT. 

SUPPLEMENTARY INFORMATION: This notice implements Congress's mandate in the No Child Left Behind Act of 2001 (NCLB Act) to provide guidelines to LEAs regarding the applicable law on single-sex classes and schools.See   Pub. L. 107-110, Sec. 5131(a)(23), 5131(c).

Elsewhere in this issue of the FederalRegister is a notice of intent to   regulate (NOIR), which invites comment on our intention to amend the current   regulations implementing Title IX of the Education Amendments of 1972 (Title   IX) related to elementary and secondary single-sex classes and schools to provide   more flexibility to educators. The purpose of these amendments would be to support   efforts of school districts to improve educational outcomes for children and   to provide public school parents with a diverse array of educational options   that respond to the educational needs of their children, while at the same time   ensuring appropriate safeguards against discrimination. The NOIR is intended   to begin this process and ensure adequate public input on these important and   sensitive issues.

GUIDELINES    ON CURRENT TITLE IX REQUIREMENTS: 

Single-sex   classes: The Title IX statute generally prohibits sex-based discrimination   in education programs or activities receiving Federal financial assistance.   Specifically, it states that no person in the United States, on the basis of   sex, can 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. 20 U.S.C. 1681.

Section   1681(a) of Title IX contains two limited exceptions relating to classes or activities   within primary and secondary schools that otherwise are coeducational. Subsection   1681(a)(7)(B) of Title IX exempts any program or activity of any secondary school   or educational institution specifically intended for the promotion of any Boys   State conference, Boys Nation conference, Girls State conference, or Girls Nation   conference or for the selection of students to attend such a conference. Subsection   1681(a)(8) of Title IX states that the law does not preclude father‐son   or mother‐daughter activities at an educational institution. However,   if those activities are provided for students of one sex, opportunities for   reasonably comparable activities must be provided for students of the other   sex. Accordingly, these activities are permitted on a single-sex basis if the   requirements of the statute are met.[1]

Our current   Title IX regulations generally prohibit single-sex classes or activities.The   regulations in 34 CFR 106.34 state --

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.

 Our regulations   contain two categorical exceptions for specific types of classes or portions   of classes that may be segregated by sex. Those exceptions are: (1) physical   education classes during participation in sports the purpose or major activity   of which involves bodily contact (34 CFR 106.34(c)); and (2) portions of classes   in elementary and secondary schools which deal exclusively with human sexuality.   (34 CFR 106.34(e)). In addition separation of students by sex is permitted if   it constitutes remedial or affirmative action. 34 CFR 106.3[2]

Single-sex schools: The Title IX statute   exempts from its coverage the admissions practices of non-vocational elementary   and secondary schools.[3] Accordingly,   the regulations do not prohibit recipients from adopting single-sex admissions   policies in non-vocational elementary and secondary schools.See 34 CFR   106.15(d). However, the regulations specifically provide that an LEA may exclude   any person from admission to a non-vocational elementary or secondary school   on the basis of sex only if 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. (34 CFR 106.35(b))[4]   In other words, under the current regulations, an LEA cannot use a single-sex   admissions policy -- which is not itself subject to Title IX's prohibition --   as the predicate for otherwise causing students, on the basis of sex, to 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. For example, school districts may not establish a single-sex school   for one sex that provides the district's only performing arts curriculum. Students   of the other sex also must have access to a comparable school with that curriculum.   It has been our longstanding interpretation, policy, and practice to require   that the comparable school must also be single-sex.

An LEA may   offer a single single-sex school if such an action constitutes remedial or affirmative   action. (34 CFR 106.3) In addition,   while the statutory exemption precludes the Department from examining an LEA's   justification for a single-sex school, LEAs also should be aware of constitutional   requirements in this area.[5]   LEAs may be challenged in court litigation on constitutional grounds. 

Electronic Access to This Document

You may review this document, as well as all    other Department of Education documents published in the Federal Register,    in text or Adobe Portable Document (PDF) on the Internet at the following site:

www.ed.gov/news/fedregister/index.html

To   use PDF you must have Adobe Acrobat Reader, which is available free at this   site. If you have questions about using PDF, call the U.S. Government Printing   Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at   (202) 512-1530. 

Note:   The official version of this document is the document published in the Federal   Register. Free Internet access to the official edition of the Federal   Register and the Code of Federal Regulations is available on GPO Access   at:

www.gpoaccess.gov/nara/index.html

AUTHORITY:   20 U.S.C. 1681, 1682.

Dated: May 3, 2002

Rod Paige,

 Secretary of Education.

[1]The     statute also exempts activities of educational institutions controlled by     religious organizations to the extent that the application of Title IX would     be inconsistent with the religious tenets of the organization. 20 U.S.C. 1681(a)(3).

[2] The     current regulations also permit recipients to group students in physical education     classes and activities by ability as assessed by objective standards of individual     performance developed and applied without regard to sex (34 CFR 106.34(b))     and to make requirements based on vocal range or quality which may result     in a chorus or choruses of one or predominantly one sex. (34 CFR 106.34(f))

[3]Section 1681(a)(1)     of Title IX states that in regard to admissions to educational institutions,     the law applies only to institutions of vocational education, professional     education, and graduate higher education, and to public institutions of undergraduate     higher education. As such, non-vocational elementary and secondary schools     are exempt.

[4]These     provisions on single-sex schools do not apply to private elementary and secondary     schools.

[5]The     Supreme Court has decided two significant constitutional cases specifically     regarding single-sex education.United States v. Virginia, 518 U.S.     515 (1996) (State-sponsored,male-only military college violated Equal Protection     Clause); Mississippi University for Women v. Hogan, 458 US 718 (1982)     (State-sponsored, female-only nursing school violated the Equal Protection     Clause.)

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