26464 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

DEPARTMENT OF EDUCATION

34 CFR Parts 100, 104, 106, and 110

RIN 1870–AA10

Conforming Amendments to the

Regulations Governing

Nondiscrimination on the Basis of

Race, Color, National Origin, Disability,

Sex, and Age Under the Civil Rights

Restoration Act of 1987

AGENCY: Office for Civil Rights,

Department of Education.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Secretary proposes to

amend the regulations governing

nondiscrimination on the basis of race,

color, national origin, sex, handicap,

and age to conform with statutory

amendments made by the Civil Rights

Restoration Act of 1987 (CRRA). These

amendments would add a definition of

‘‘program or activity’’ or ‘‘program’’ that

adopts the statutory definition of

‘‘program or activity’’ or ‘‘program’’

enacted as part of the CRRA.

DATES: We must receive your comments

on or before July 5, 2000.

ADDRESSES: Address all comments about

these proposed regulations to Jeanette J.

Lim, U.S. Department of Education, 400

Maryland Avenue, SW., room 5036

MES, Washington, DC 20202–1100. If

you prefer to send your comments

through the Internet, use the following

address: comments@ed.gov

You must include the term ‘‘CRRA’’

in the subject line of your electronic

message.

FOR FURTHER INFORMATION CONTACT:

Jeanette J. Lim. Telephone: (202) 205–

5557. If you use a telecommunications

device for the deaf (TDD), you may call

the TDD number at (202) 260–0471 or

the Federal Information Relay Service at

1–800–877–8339.

For additional copies of this NPRM,

individuals may call OCR’s Customer

Service Team at 202–205–5557 or tollfree at 1–800–421–3481.

Individuals with disabilities may

obtain this document in an alternative

format (e.g., Braille, large print,

audiotape, or computer diskette) on

request to OCR’s Customer Service

Team listed in the preceding paragraph.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments

regarding these proposed regulations.

To ensure that your comments have

maximum effect in developing the final

regulations, we urge you to identify

clearly the specific section or sections of

the proposed regulations that each of

your comments addresses and to arrange

your comments in the same order as the

proposed regulations.

We invite you to assist us in

complying with the specific

requirements of Executive Order 12866

and its overall requirement of reducing

regulatory burden that might result from

these proposed regulations. Please let us

know of any further opportunities we

should take to reduce potential costs or

increase potential benefits while

preserving the effective and efficient

administration of the program.

During and after the comment period,

you may inspect all public comments

about these proposed regulations in

room 5036, 330 C Street, SW.,

Washington, DC, between the hours of

9:30 a.m. and 5 p.m., Eastern time,

Monday through Friday of each week

except Federal holidays.

Assistance to Individuals With

Disabilities in Reviewing the

Rulemaking Record

On request, we will supply an

appropriate aid, such as a reader or

print magnifier, to an individual with a

disability who needs assistance to

review the comments or other

documents in the public rulemaking

record for these proposed regulations. If

you want to schedule an appointment

for this type of aid, you may call (202)

205–8113 or (202) 260–9895. If you use

a TDD, you may call the Federal

Information Relay Service at 1–800–

877–8339.

Overview

The Department of Education

(Department or ED) proposes to amend

these civil rights regulations to conform

to provisions of the Civil Rights

Restoration Act (CRRA), regarding the

scope of coverage under civil rights

statutes administered by the

Department. These statutes include Title

VI of the Civil Rights Act of 1964, as

amended, 42 U.S.C. 2000d, et seq. (Title

VI), Title IX of the Education

Amendments of 1972, 20 U.S.C. 1681, et

seq., (Title IX), Section 504 of the

Rehabilitation Act of 1973, as amended,

29 U.S.C. 794 (Section 504), and the Age

Discrimination Act of 1975, 42 U.S.C.

6101, et seq. (Age Discrimination Act).

Title VI prohibits discrimination on the

basis of race, color, and national origin

in all programs or activities that receive

Federal financial assistance; Title IX

prohibits discrimination on the basis of

sex in education programs or activities

that receive Federal financial assistance;

Section 504 prohibits discrimination on

the basis of disability in all programs or

activities that receive Federal financial

assistance; and the Age Discrimination

Act prohibits discrimination on the

basis of age in all programs or activities

that receive Federal financial assistance.

The proposed conforming change is to

amend each of these regulations to add

a definition of ‘‘program or activity’’ or

‘‘program’’ that adopts the statutory

definition of ‘‘program or activity’’ or

‘‘program’’ enacted as part of the CRRA.

We believe that adding this statutory

definition to the regulatory language is

the best way to avoid confusion on the

part of recipients, students, parents, and

other interested parties about the scope

of civil rights coverage. This proposal

also conforms to a notice of proposed

rulemaking (NPRM) to establish Title IX

common regulations for 24 Federal

agencies published on October 29, 1999.

(64 FR 58568) That proposed common

rule incorporated the statutory

definitions of ‘‘program or activity’’ or

‘‘program’’ enacted as part of the CRRA.

The Department’s civil rights

regulations, when originally issued and

implemented, were interpreted by the

Department to mean that acceptance of

Federal assistance by a school resulted

in broad institutional coverage. In Grove

City College v. Bell, 465 U.S. 555, 571–

72 (1984) (Grove City College), the

Supreme Court held, in a Title IX case,

that if the Department provides student

financial assistance to a college, the

Department has jurisdiction to ensure

Title IX compliance in the specific

program receiving the assistance, in this

case, the student financial aid office, but

that the Federal student financial

assistance would not provide

jurisdiction over the entire institution.

Following the Supreme Court’s decision

in Grove City College, the Department

did change its interpretation, but not the

language, of these regulations to be

consistent with the Court’s restrictive,

‘‘program specific’’ definition of

‘‘program or activity’’ or ‘‘program.’’

Since Title IX was patterned after Title

VI, Grove City College significantly

narrowed the scope of jurisdiction of

Title VI and two other statutes based on

it: The Age Discrimination Act and

Section 504. See S. Rep. No. 100–64,

100th Cong., 1st Sess. 2–3, 11–16 (1987).

Then, in 1988, the CRRA was enacted

to ‘‘restore the prior consistent and longstanding executive branch interpretation

and broad, institution-wide application

of those laws as previously

administered.’’ 20 U.S.C. 1687 note 1.

Congress enacted the CRRA in order to

remedy what it perceived to be a serious

narrowing by the Supreme Court of a

longstanding administrative

interpretation of the coverage of the

regulations. At that time, the

Department reinstated its broad

interpretation to be consistent with the

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26465

CRRA, again without changing the

language of the regulations. It was and

remains the Department’s consistent

interpretation that—with regard to the

differences between the interpretation of

the regulations given by the Supreme

Court in Grove City College and the

language of the CRRA—the CRRA,

which took effect upon enactment,

superseded the Grove City College

decision and, therefore, the regulations

must be read in conformity with the

CRRA.

This interpretation reflects the

understanding of Congress, as expressed

in the legislative history of the CRRA,

that the statutory definition of ‘‘program

or activity’’ or ‘‘program’’ would take

effect immediately, by its own force,

without the need for Federal agencies to

amend their existing regulations. S. Rep.

No. 100–64 at 32. The legislative history

also evidences congressional concern

about the Department’s immediate need

to address complaints and findings of

discrimination in federally assisted

schools under the CRRA definition of

‘‘program or activity,’’ citing examples

to demonstrate why the CRRA was

‘‘urgently’’ needed. S. Rep. No. 100–64

at 11–16.

The proposed regulatory change

discussed previously would eliminate

an issue recently raised by the Third

Circuit Court of Appeals in Cureton v.

NCAA, 198 F. 3d 107 (1999) (Cureton).

That court determined that, because the

Department did not amend its Title VI

regulations after the CRRA amended

Title VI, application of the Department’s

Title VI regulations to disparate impact

discrimination claims is ‘‘program

specific’’ (i.e., limited to specific

programs in an institution affected by

the Federal funds), rather than

institution-wide (i.e., applicable to all of

the operations of the institution

regardless of the use of the Federal

funds). The Department disagrees with

the Cureton decision for the reasons

described in this preamble. That

decision would thwart clearly expressed

congressional intent. In any event, the

proposed regulatory changes would

address the concerns raised by the Third

Circuit in that the regulations would

track the statutory language and apply

to both disparate impact discrimination

and different treatment discrimination.

(‘‘Different treatment,’’ i.e., intentional

discrimination, refers to policies or

practices that treat individuals

differently based on their race, color,

national origin, sex, disability, or age, as

applicable. That different treatment is

generally barred by the civil rights

statutes and regulations. ‘‘Disparate

impact’’ refers to criteria or methods of

administration that have a significant

disparate effect on individuals based on

race, color, national origin, sex,

disability, or age, as applicable. Those

criteria or practices may constitute

impermissible discrimination based on

legal standards that include

consideration of their educational

necessity.) The statutory definition, which is

being incorporated into the regulations,

addresses four broad categories of

recipients: (1) State or local

governmental entities. (2) Colleges,

universities, other postsecondary

educational institutions, public systems

of higher education, local educational

agencies (LEAs), systems of vocational

education, and other school systems. (3)

Private entities, such as corporations,

partnerships, and sole proprietorships,

including those whose principal

business is providing education. (4)

Entities that are established by a

combination of two or more of the first

three types of entities. Under the first part of the definition,

if State and local governmental entities

receive financial assistance from the

Department, the ‘‘program or activity’’

or ‘‘program’’ in which discrimination is

prohibited includes all of the operations

of any State or local department or

agency to which the Federal assistance

is extended. For example, if the

Department provides financial

assistance to a State educational agency,

all of the agency’s operations are subject

to the nondiscrimination requirements

of the regulations. In addition, ‘‘program

or activity’’ or ‘‘program’’ also includes

all of the operations of the entity of a

State or local government that

distributes the Federal assistance to

another State or local governmental

agency or department and all of the

operations of the State or local

governmental entity to which the

financial assistance is extended. For

example, if the Department provides

financial assistance under Title I of the

Elementary and Secondary Education

Act to a State educational agency and

the State educational agency distributes

the financial assistance to a local

educational agency, then all of the

operations of the State educational

agency are subject to the

nondiscrimination requirements of the

regulations, and all of the operations of

the local educational agency are

covered.

Under the second part of the

definition of ‘‘program or activity’’ or

‘‘program,’’ if colleges, universities,

other postsecondary institutions, public

systems of higher education, local

educational agencies, systems of

vocational education, or other public or

private schools or school systems

receive financial assistance from the

Department, all of their operations are

subject to the nondiscrimination

requirements of the regulations. For

example, if a public school district

receives funds from the Department

under the Safe and Drug Free Schools

and Communities Act, the entire school

district is covered, not just the district’s

Safe and Drug Free Schools and

Communities component. Additionally,

for example, if a college or university

receives student financial assistance

from the Department, all of the

operations of the college or university

are covered, not solely the operations of

the student financial assistance office.

In addition, the legislative history of the

CRRA made it clear that ‘‘all of the

operations’’ was not limited to

traditional educational operations, but

was intended to include other benefits

and services of the educational

institution, such as faculty and student

housing, campus shuttle bus services,

and commercial activities, such as

cafeterias and bookstores.

Under the third part of the definition,

in the case of private entities not already

listed under the second part of the

definition, if the federally assisted entity

or organization is principally engaged in

the business of education (or health

care, housing, social services, or parks

and recreation), then the entire

corporation, partnership, or other

private organization or sole

proprietorship is the covered ‘‘program

or activity’’ or ‘‘program.’’ For example,

if an individual elementary or

secondary school that is neither part of

an LEA nor part of an assisted private

‘‘school system’’ receives financial

assistance from the Department, the

school will be covered on an institutionwide basis under this portion of the

definition of ‘‘program or activity’’ or

‘‘program’’ because it is an entity

principally engaged in the business of

providing education. For example, if a

proprietary trade school receives

student financial assistance from the

Department, all of its operations are

covered by the nondiscrimination

requirements of the regulations.

Also under the third part of the

definition, if a private entity is not

principally engaged in the business of

education or health care, housing, social

services, or parks and recreation and the

Department extends financial assistance

to the private entity ‘‘as a whole,’’ all of

the private entity’s operations at all of

its locations would be covered. If the

Department were to extend general

assistance, that is, assistance that is not

designated for a particular purpose, to

this type of corporation or other private

entity, that would be considered

financial assistance to the private entity

26466 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

‘‘as a whole.’’ In other instances in

which a geographically separate facility

receives assistance under the third part

of this definition, the coverage would be

limited to the geographically separate

facility that receives the assistance.

Under the fourth part of the

definition, if an entity of a type not

already covered by one of the first three

parts of the definition is established by

two or more of the entities listed under

the first three parts of the definition,

then all of the operations of that new

entity are covered. Under the illustrative

example in the legislative history, a

public school district (an entity listed

under the second part of the definition)

and a private corporation (an entity

listed under the third part of the

definition) may establish a new

company, which is a public-private

partnership designed to provide

remediation, training, and employment

to high school students who are at risk

of dropping out of school. If the new

company applied for and received

financial assistance from the

Department, then, as an entity listed

under the fourth part of the definition,

all of its operations would be covered,

even if the assistance from the

Department went only to one division or

component of the new company.

The proposed regulations also would

modify or delete some existing sections

of the Department regulations that have

become superfluous following the CRRA

enactment, to conform with the CRRA

definitions of ‘‘program or activity’’ or

‘‘program.’’ These proposed regulations

would not change the requirements of

the existing regulations. This is

consistent with the approach in the

Title IX common rule NPRM in which

it was noted that regulatory language in

ED’s Title IX regulations made

superfluous by the enactment of the

CRRA was omitted in that proposed rule

(64 FR 58571).

The Department’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

previously discussed, this interpretation

was rejected by the Supreme Court in

1984 in Grove City College, which held

that Federal student financial aid

established Title IX jurisdiction only

over the financial aid program, not the

entire institution. However, Congress’

1988 enactment of the CRRA

counteracted this decision by defining

‘‘program or activity’’ and ‘‘program’’ 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. For the same reason, we propose

to delete the words ‘‘or benefits from’’

from the Section 504 regulations. These

deletions do not affect the reach of Title

IX or Section 504.

The Department of Education’s

existing Title VI regulations,

promulgated in 1964 by the Department

of Health, Education, and Welfare in 29

FR 16298 and 29 FR 16988 and in 1965

in 30 FR 16988, include an assurance

requirement for institutions in

§ 100.4(d)(2) that has created confusion

with regard to the scope of ‘‘program or

activity’’ and ‘‘program’’ under Title VI.

One example is the previously

referenced decision in Cureton. The

current provision states, in part, ‘‘The

assurance * * * shall be applicable to

the entire institution unless the

applicant establishes, to the satisfaction

of the responsible Department official,

that the institution’s practices in

designated parts or programs of the

institution will in no way affect its

practices in the program of the

institution for which Federal financial

assistance is sought * * *.’’ (34 CFR

100.4(d)(2)) This NPRM proposes to

delete that portion of the assurance to

avoid any further confusion. As

previously stated, it was appropriate to

apply the CRRA statutory definition of

‘‘program or activity’’ to the regulations.

For the same reasons, portions of the

illustrations in § 100.5 (b) and (d) would

be deleted, since they could create

similar confusion. Specifically, current

§ 100.5(b) states that, with regard to

university graduate research, training,

demonstration, or other grants, ‘‘the

prohibition extends to the entire

university unless it satisfies the

responsible Department official that

practices with respect to other parts or

programs of the university will not

interfere, directly or indirectly, with

fulfillment of the assurance required

with respect to the graduate school.’’

Similarly, current § 100.5(d) states that

‘‘In construction grants the assurances

required will be adapted to the nature

of the activities to be conducted in the

facilities for construction of which the

grants have been authorized by

Congress.’’ These proposed deletions

would not affect the reach of Title VI.

In addition, we are proposing

conforming changes that delete

references to ‘‘program’’ or ‘‘program or

activity’’ in the existing regulations that

do not refer to the CRRA broad

definition of that phrase and to continue

the longstanding Department

interpretation of the statutes and

regulations. For example, in some

instances, we have proposed to delete

‘‘program’’ or ‘‘program or activity’’ and

substitute ‘‘Federal financial assistance’’

or ‘‘aids, benefits, or services.’’ In

others, we have proposed to change

‘‘programs and activities’’ to ‘‘programs

or activities’’ to conform the regulations

to the phrase used in the CRRA—when

it is used in the broad manner defined

in the CRRA. We have not proposed to

modify the term ‘‘activity’’ when it

appears separately from the phrase

‘‘program or activity’’ and is used in a

manner unrelated to the CRRA phrase

‘‘program or activity.’’

It is important to note that the

proposed changes would not in any way

alter the requirement of the CRRA that

a proposed or effectuated fund

termination be limited to the particular

program or programs ‘‘or part thereof’’

that discriminates or, as appropriate, to

all of the programs that are infected by

the discriminatory practices. See S. Rep.

No. 100–64, at 20 (‘‘The [CRRA] defines

‘program’ in the same manner as

‘program or activity,’ and leaves intact

the ‘or part thereof’ pinpointing

language.’’).

We propose to replace the current

definition of ‘‘program’’ in 34 CFR

100.13 with the proposed definition of

‘‘program or activity’’ and ‘‘program.’’

We propose to add the definition of

‘‘program or activity’’ and ‘‘program’’ to

34 CFR 106.2. We propose to add the

definition of ‘‘program or activity’’ to 34

CFR 104.3 and to 34 CFR 110.3.

Because, as previously explained, the

proposed changes merely incorporate

statutory language and do not alter the

Department’s consistent position that

the regulations must be read in

conformity with the CRRA, the

Department views these changes as

technical in nature. However, the

Department is inviting public comment

on the proposed changes, consistent

with its policy of involving interested

members of the public in its rulemaking

process. Conforming changes to the

nonregulatory guidance in Appendix B

of Part 100, Appendix A of Part 104, and

Appendix A of Part 106 will be

published in the Federal Register in a

separate notice. Nothing in these

proposed changes affects coverage

under the Federal employment

nondiscrimination statutes, including

Title VII of the Civil Rights Act of 1964,

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26467

Title I of the Americans with

Disabilities Act, and the Age

Discrimination in Employment Act.

Executive Order 12866

1. Potential Costs and Benefits

Under Executive Order 12866, we

have assessed the potential costs and

benefits of this regulatory action.

The potential costs associated with

the proposed regulations are those

resulting from statutory requirements

and those we have determined as

necessary for administering these

programs effectively and efficiently.

In assessing the potential costs and

benefits—both quantitative and

qualitative—of this regulatory action,

we have determined that there probably

will be no cost impacts because this

regulatory action merely clarifies

longstanding Department policy and

does not change the Department’s

practices in addressing issues of

discrimination.

We have also determined that this

regulatory action would not unduly

interfere with State, local, and tribal

governments in the exercise of their

governmental functions.

Summary of Potential Costs and

Benefits

Recently, the Third Circuit Court of

Appeals interpreted existing regulations

inconsistently with the language of the

CRRA and our existing practices. The

Department disagrees with that

decision. However, these proposed

regulations would clarify the

Department’s policy and practice in

light of that decision—and would do

that only a short time after the court

decision, thereby ensuring continuity in

that policy and practice and avoiding

changes in the behavior of recipients

within the Third Circuit that could

occur if Federal civil rights jurisdiction

were changed. Therefore, it is possible

that there will be no costs associated

with the proposed regulations.

2. Clarity of the Regulations

Executive Order 12866 and the

President’s Memorandum of June 1,

1998 on ‘‘Plain Language in Government

Writing’’ require each agency to write

regulations that are easy to understand.

The Secretary invites comments on

how to make these proposed regulations

easier to understand, including answers

to questions such as the following:

• Are the requirements in the

proposed regulations clearly stated?

• Do the proposed regulations contain

technical terms or other wording that

interferes with their clarity?

• Does the format of the proposed

regulations (grouping and order of

sections, use of headings, paragraphing,

etc.) aid or reduce their clarity?

• Would the proposed regulations be

easier to understand if we divided them

into more (but shorter) sections? (A

‘‘section’’ is preceded by the symbol ‘‘§’’

and a numbered heading; for example,

§ 100.2 Application of this regulation.)

• Could the description of the

proposed regulations in the

SUPPLEMENTARY INFORMATION section of

this preamble be more helpful in

making the proposed regulations easier

to understand? If so, how?

• What else could we do to make the

proposed regulations easier to

understand?

Send any comments that concern how

the Department could make these

proposed regulations easier to

understand to the person listed in the

ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

The Secretary certifies that these

proposed regulations would not have a

significant economic impact on a

substantial number of small entities.

These regulations implement statutory

amendments and longstanding

Department policy.

Paperwork Reduction Act of 1995

These proposed regulations do not

contain any information collection

requirements.

Assessment of Educational Impact

The Secretary particularly requests

comments on whether these proposed

regulations would require transmission

of information that any other agency or

authority of the United States gathers or

makes available.

Electronic Access to This Document

You may view this document, as well

as all other Department of Education

documents published in the Federal

Register, in text or Adobe Portable

Document Format (PDF) on the Internet

at either of the following sites:

http://ocfo.ed.gov/fedreg.htm

http://www.ed.gov/news.html

To use the PDF you must have the

Adobe Acrobat Reader Program with

Search, which is available free at either

of the previous sites. If you have

questions about using the 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: http://www.access.gpo.gov/nara/

index.html

List of Subjects

34 CFR Part 100

Administrative practice and

procedure, Civil rights.

34 CFR Part 104

Civil Rights, Equal educational

opportunity, Equal employment

opportunity, Individuals with

disabilities.

34 CFR Part 106

Education, Sex discrimination.

34 CFR Part 110

Administrative practice and

procedure, Aged, Civil rights, Grant

programs—education, Loan programs—

education.

Dated: March 29, 2000.

Richard W. Riley,

Secretary of Education.

For the reasons discussed in the

preamble, the Secretary proposes to

amend parts 100, 104, 106, and 110 of

title 34 of the Code of Federal

Regulations as follows:

PART 100—NONDISCRIMINATION

UNDER PROGRAMS RECEIVING

FEDERAL ASSISTANCE THROUGH

THE DEPARTMENT OF EDUCATION

EFFECTUATION OF TITLE VI OF THE

CIVIL RIGHTS ACT OF 1964

1. The authority citation for part 100

continues to read as follows:

Authority: Sec. 602, 78 Stat. 252; 42 U.S.C.

2000d–1, unless otherwise noted.

§ 100.2 [Amended]

2. Section 100.2 is amended by

removing the words ‘‘program for

which’’ and adding, in their place,

‘‘program to which’’ and removing the

words ‘‘assisted programs and

activities’’ and adding, in their place,

‘‘financial assistance’’.

§ 100.3 [Amended]

3. Section 100.3(d) is amended by

removing the words ‘‘the benefits of a

program’’, and adding, in their place,

the word ‘‘benefits’’.

§ 100.4 [Amended]

4. Section 100.4 is amended as

follows—

A. Removing the words ‘‘to carry out

a program’’ in the first sentence of

paragraph (a)(1);

B. Removing the words ‘‘except a

program’’ and adding, in their place, the

words ‘‘except an application’’ in the

first sentence of paragraph (a)(1);

C. Removing the words ‘‘for each

program’’ and the words ‘‘in the

program’’ in the fifth sentence of

paragraph (a)(1);

26468 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

D. Removing the words ‘‘State

programs’’ and adding, in their place,

the words ‘‘Federal financial

assistance’’ in the heading of paragraph

(b);

E. Removing the words ‘‘to carry out

a program involving’’ and adding, in

their place, the word ‘‘for’’ in paragraph

(b); and

F. Revising paragraph (d)(2).

The revision reads as follows:

§ 100.4 Assurances required.

* * * * *

(d) * * *

(2) The assurance required with

respect to an institution of higher

education, hospital, or any other

institution, insofar as the assurance

relates to the institution’s practices with

respect to admission or other treatment

of individuals as students, patients, or

clients of the institution or to the

opportunity to participate in the

provision of services or other benefits to

such individuals, shall be applicable to

the entire institution.

* * * * *

5. Section 100.5 is amended as

follows—

A. Revising paragraph (b); and

B. Removing the last sentence of

paragraph (d).

The revision reads as follows:

§ 100.5 Illustrative application.

* * * * *

(b) In a research, training,

demonstration, or other grant to a

university for activities to be conducted

in a graduate school, discrimination in

the admission and treatment of students

in the graduate school is prohibited, and

the prohibition extends to the entire

university.

* * * * *

§ 100.6 [Amended]

6. Section 100.6(b) is amended by

removing the words ‘‘of any program

under’’ in the last sentence and adding,

in their place, the word ‘‘in’’.

§ 100.9 [Amended]

7. Section 100.9(e) is amended by

removing the word ‘‘programs’’ in the

first sentence and adding, in its place,

the words ‘‘Federal assistance statutes’’.

8. Section 100.13 is amended by

removing ‘‘for any program,’’ and

‘‘under any such program’’ in paragraph

(i); removing ‘‘for the purpose of

carrying out a program’’ in paragraph (j);

and revising paragraph (g) and adding

an authority citation following

paragraph (g) to read as follows:

§ 100.13 Definitions.

* * * * *

(g) The term program or activity and

the term program mean all of the

operations of—

(1)(i) A department, agency, special

purpose district, or other

instrumentality of a State or of a local

government; or

(ii) 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;

(2)(i) A college, university, or other

postsecondary institution, or a public

system of higher education; or

(ii) A local educational agency (as

defined in 20 U.S.C. 8801), system of

vocational education, or other school

system;

(3)(i) An entire corporation,

partnership, or other private

organization, or an entire sole

proprietorship—

(A) If assistance is extended to such

corporation, partnership, private

organization, or sole proprietorship as a

whole; or

(B) Which is principally engaged in

the business of providing education,

health care, housing, social services, or

parks and recreation; or

(ii) 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

(4) Any other entity that is established

by two or more of the entities described

in paragraph (g)(1), (2), or (3) of this

section; any part of which is extended

Federal financial assistance.

(Authority: 42 U.S.C. 2000d–4)

* * * * *

9. Appendix A to part 100 is amended

by revising the heading of part 1 and the

heading of part 2 to read as follows:

Appendix A to Part 100—Federal

Financial Assistance to Which These

Regulations Apply

Part 1—Assistance Other Than Continuing

Assistance to States

* * * * *

Part 2—Continuing Assistance to States

* * * * *

PART 104—NONDISCRIMINATION ON

THE BASIS OF HANDICAP IN

PROGRAMS OR ACTIVITIES

RECEIVING FEDERAL FINANCIAL

ASSISTANCE

10. The heading for part 104 is revised

to read as set forth above.

11. The authority citation for part 104

continues to read as follows:

Authority: 20 U.S.C. 1405; 29 U.S.C. 794.

§ 104.2 [Amended]

12. Section 104.2 is amended by

removing the word ‘‘each’’ wherever it

appears and adding, in its place, the

word ‘‘the’’; and by removing the words

‘‘or benefits from’’.

13. Section 104.3 is amended by

redesignating paragraphs (k) and (l) as

paragraphs (l) and (m), respectively;

adding a new paragraph (k); and adding

an authority citation following

paragraph (k) to read as follows:

§ 104.3 Definitions.

* * * * *

(k) Program or activity means all of

the operations of—

(1)(i) A department, agency, special

purpose district, or other

instrumentality of a State or of a local

government; or

(ii) 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;

(2)(i) A college, university, or other

postsecondary institution, or a public

system of higher education; or

(ii) A local educational agency (as

defined in 20 U.S.C. 8801), system of

vocational education, or other school

system;

(3)(i) An entire corporation,

partnership, or other private

organization, or an entire sole

proprietorship—

(A) If assistance is extended to such

corporation, partnership, private

organization, or sole proprietorship as a

whole; or

(B) Which is principally engaged in

the business of providing education,

health care, housing, social services, or

parks and recreation; or

(ii) 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

(4) Any other entity which is

established by two or more of the

entities described in paragraph (k)(1),

(2), or (3) of this section; any part of

which is extended Federal financial

assistance.

(Authority: 29 U.S.C. 794(b))

* * * * *

14. Section 104.4 is amended by—

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26469

A. Removing the words ‘‘or benefits

from’’ in paragraphs (a) and (b)(5);

B. Removing the words ‘‘programs or

activities’’ wherever they appear in

paragraph (b)(3), and adding, in their

place, ‘‘aids, benefits, or services’’;

C. Removing the words ‘‘or benefiting

from’’ in paragraph (b)(6); and

D. In paragraph (c), removing the

word ‘‘Programs’’ in the heading and

adding, in its place, the words ‘‘Aids,

benefits, or services’’; removing the

words ‘‘from the benefits of a program’’

and adding, in their place, the words

‘‘from aids, benefits, or services’’, and

removing the words ‘‘from a program’’

and adding, in their place, the words

‘‘from aids, benefits, or services’’.

§§ 104.4, 104.6, 104.12, 104.33 [Amended]

15. Remove the word ‘‘program’’ and

add, in its place, the words ‘‘program or

activity’’ in the following sections:

A. Section 104.4(b)(4);

B. Section 104.6(a)(3), wherever it

appears;

C. Section 104.12(a), (c) introductory

text, and (c)(1); and

D. Section 104.33(a).

§ 104.5 [Amended]

16. Section 104.5(a) is amended in the

first sentence by removing the words

‘‘for a program or activity’’ and by

removing the words ‘‘the program’’ and

adding, in their place, the words ‘‘the

program or activity’’.

§ 104.8 [Amended]

17. Section 104.8(a) is amended by

removing the words ‘‘programs and

activities’’ in the second sentence and

adding, in their place, the words

‘‘programs or activities’’.

§ 104.11 [Amended]

18. Section 104.11 is amended by—

A. Removing the words ‘‘programs

assisted’’ and adding, in their place, the

words ‘‘programs or activities assisted’’

in paragraph (a)(2);

B. Removing the word ‘‘programs’’

and revising ‘‘apprenticeship’’ to read

‘‘apprenticeships’’ in the last sentence

of paragraph (a)(4).

C. Removing the word ‘‘programs’’

and adding the words ‘‘those that are’’

before ‘‘social or recreational’’ in

paragraph (b)(8).

Subpart C to Part 104—[Amended]

19. The heading of Subpart C is

amended by removing the word

‘‘Program’’.

§ 104.22 [Amended]

20. Section 104.22 is amended in

paragraph (a) by removing the words

‘‘Program accessibility’’ in the heading

and adding, in their place, the word

‘‘Accessibility’’ and by removing the

words ‘‘each program or activity to

which this part applies so that the

program or activity, when viewed in its

entirety,’’ in the first sentence and

adding, in their place, the words ‘‘its

program or activity so that when each

part is viewed in its entirety, it’’; by

removing the words ‘‘offer programs and

activities to’’ in the last sentence and

adding, in their place, the word ‘‘serve’’

in paragraph (b); and by removing the

word ‘‘program’’ in paragraph (e)(3).

§ 104.31 [Amended]

21. Section 104.31 is amended by

removing the words ‘‘or benefit from’’

wherever they appear; and by removing

the words ‘‘programs and activities’’ and

adding, in their place, the words

‘‘programs or activities’’.

§ 104.33 [Amended]

22. Section 104.33 is amended by—

A. Removing the words

‘‘individualized education program’’

and adding, in their place, the words

‘‘Individualized Education Program’’ in

paragraph (b)(2);

B. Removing the words ‘‘in or refer

such person to a program other than the

one that it operates’’ and adding, in

their place, the words ‘‘or refer such a

person for aids, benefits, or services

other than those that it operates or

provides’’ in the first sentence in

paragraph (b)(3);

C. Removing the words ‘‘in or refers

such person to a program not operated’’

in the second sentence of paragraph

(c)(1), and adding, in their place, the

words ‘‘or refers such person for aids,

benefits, or services not operated or

provided’’;

D. Removing the words ‘‘of the

program’’ in the second sentence of

paragraph (c)(1) and adding, in their

place, the words ‘‘of the aids, benefits,

or services’’;

E. Removing the words ‘‘in or refers

such person to a program not operated’’

in paragraph (c)(2), and adding, in their

place, the words ‘‘or refers such person

for aids, benefits, or services not

operated or provided’’;

F. Removing the words ‘‘from the

program’’ in paragraph (c)(2), and

adding, in their place, the words ‘‘from

the aids, benefits, or services’’;

G. Removing the words ‘‘in the

program’’ in paragraph (c)(2), and

adding, in their place, the words ‘‘in the

aids, benefits, or services’’;

H. Removing the words ‘‘If placement

in a public or private residential

program’’ and adding, in their place, the

words ‘‘If a public or private residential

placement’’ in paragraph (c)(3); and

removing the words ‘‘the program’’, and

adding, in their place, the words ‘‘the

placement’’; and

I. Removing the words ‘‘such a

program’’ in the last sentence of

paragraph (c)(4), and adding, in their

place, the words ‘‘a free appropriate

public education’’.

§ 104.35 [Amended]

23. Section 104.35(a) is amended by

removing the words ‘‘program shall’’

and adding, in their place, the words

‘‘program or activity shall’’ and by

removing the word ‘‘a’’ before the word

‘‘regular’’ and by removing the word

‘‘program’’ before the word ‘‘and’’.

§ 104.37 [Amended]

24. Section 104.37(c)(1) is amended

by removing the words ‘‘programs and

activities’’ in the first sentence and

adding, in their place, the words ‘‘aids,

benefits, or services’’; and by removing

the words ‘‘in these activities’’ in the

last sentence.

§ 104.38 [Amended]

25. Section 104.38 is amended by—

A. Removing the word ‘‘programs’’ in

the section heading;

B. Removing the words ‘‘operates a’’

and adding, in their place, the word

‘‘provides’’;

C. Removing the words ‘‘program or

activity or an’’ after the word ‘‘care’’ and

adding, in their place, the word ‘‘or’’;

D. Removing the words ‘‘program or

activity’’ after the word ‘‘education’’;

E. Removing the words ‘‘from the

program or activity’’;

F. Revising the word ‘‘aid’’ to read

‘‘aids’’; and

G. Removing the words ‘‘under the

program or activity’’.

§ 104.39 [Amended]

26. Section 104.39 is amended by—

A. Removing the word ‘‘programs’’ in

the section heading;

B. Removing the words ‘‘operates a’’

and adding, in their place, the word

‘‘provides’’ in paragraph (a);

C. Removing the word ‘‘program’’

after the word ‘‘education’’ in paragraph

(a);

D. Removing the words ‘‘from such

program’’ in paragraph (a);

E. Removing the words ‘‘the

recipient’s program’’ in paragraph (a),

and adding, in their place, the words

‘‘that recipient’s program or activity’’;

and

F. Removing the words ‘‘operates

special education programs shall

operate such programs’’ in paragraph

(c), and adding, in their place, the words

‘‘provides special education shall do

so’’.

26470 Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules

§ 104.41 [Amended]

27. Section 104.41 is amended by

removing the words ‘‘programs and

activities’’ wherever they appear in the

section and adding, in their place, the

words ‘‘programs or activities’’; and by

removing the words ‘‘or benefit from’’

wherever they appear in the section.

§ 104.43 [Amended]

28. Sections 104.43 is amended by—

A. Removing the words ‘‘program or

activity’’ in paragraph (a) and adding, in

their place, the words ‘‘aids, benefits, or

services’’; and

B. Removing the words ‘‘programs

and activities’’ in paragraph (d), and

adding, in their place, the words

‘‘program or activity’’.

§ 104.44 [Amended]

29. Section 104.44 is amended by—

A. Removing the words ‘‘program of’’

in the second sentence of paragraph (a);

B. Removing the words ‘‘in its

program’’ in paragraph (c); and

C. Removing the words ‘‘under the

education program or activity operated

by the recipient’’ in paragraph (d)(1).

§ 104.47 [Amended]

30. Section 104.47 is amended by

removing the words ‘‘programs and

activities’’ in paragraph (a)(1), and

adding, in their place, the words ‘‘aids,

benefits, or services’’.

§ 104.51 [Amended]

31. Section 104.51 is amended by

removing the words ‘‘or benefit from’’

wherever they appear in the section;

and by removing the word ‘‘and’’ before

the word ‘‘activities’’ and adding, in its

place, the word ‘‘or’’.

PART 106—NONDISCRIMINATION ON

THE BASIS OF SEX IN EDUCATION

PROGRAMS OR ACTIVITIES

RECEIVING FEDERAL FINANCIAL

ASSISTANCE

32. The heading for part 106 is revised

to read as set forth above.

33. Section 106.2 is amended by—

A. Redesignating paragraphs (h)

through (r) as paragraphs (i) through (s),

respectively;

B. Adding a new paragraph (h) and

adding an authority citation following

paragraph (h); and

C. Amending redesignated paragraph

(i) to remove the words ‘‘or benefits

from’’.

The addition reads as follows:

§ 106.2 Definitions.

* * * * *

(h) Program or activity and program

means all of the operations of—

(1)(i) A department, agency, special

purpose district, or other

instrumentality of a State or local

government; or

(ii) The entity of a 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;

(2)(i) A college, university, or other

postsecondary institution, or a public

system of higher education; or

(ii) A local educational agency (as

defined in 20 U.S.C. 8801), system of

vocational education, or other school

system;

(3)(i) An entire corporation,

partnership, other private organization,

or an entire sole proprietorship—

(A) If assistance is extended to such

corporation, partnership, private

organization, or sole proprietorship as a

whole; or

(B) Which is principally engaged in

the business of providing education,

health care, housing, social services, or

parks and recreation; or

(ii) 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

(4) Any other entity that is established

by two or more of the entities described

in paragraph (h)(1), (2), or (3) of this

section; any part of which is extended

Federal financial assistance.

(Authority: 20 U.S.C. 1687)

* * * * *

§ 106.4 [Amended]

34. Section 106.4 is amended by

removing the word ‘‘each’’ and adding,

in its place, the word ‘‘the’’ in the first

sentence of paragraph (a).

§ 106.6 [Amended]

35. Section 106.6 is amended by

removing the words ‘‘or benefits from’’

in paragraph (c).

§ 106.11 [Amended]

36. Section 106.11 is amended by

removing the word ‘‘each’’ and adding,

in its place, the word ‘‘the’’; and by

removing the words ‘‘or benefits from’’.

Subparts D and E of Part 106—

[Amended]

37. The headings of Subparts D and E

are amended by removing the word

‘‘and’’ and adding, in its place, the word

‘‘or’’.

§ 106.31 [Amended]

38. Section 106.31 is amended by—

A. Removing the word ‘‘and’’ in the

section heading and adding, in its place,

the word ‘‘or’’;

B. Removing the words ‘‘or benefits

from’’ in the first sentence of paragraph

(a); and

C. Removing the words ‘‘Programs not

operated’’ in the heading of paragraph

(d), and adding, in their place, the

words ‘‘Aid, benefits or services not

provided’’.

§ 106.40 [Amended]

39. Section 106.40 is amended by

removing the words ‘‘in the normal

education program or activity’’ in

paragraph (b)(2); and by removing the

words ‘‘instructional program in the

separate program’’ in paragraph (b)(3)

and adding, in their place, the words

‘‘separate portion’’.

§ 106.51 [Amended]

40. Section 106.51 is amended by

removing the words ‘‘or benefits from’’

in paragraph (a)(1).

PART 110—NONDISCRIMINATION ON

THE BASIS OF AGE IN DEPARTMENT

OF EDUCATION PROGRAMS OR

ACTIVITIES RECEIVING FEDERAL

FINANCIAL ASSISTANCE

41. The authority citation for part 110

continues to read as follows:

Authority: 42 U.S.C. 6101 et seq., unless

otherwise noted.

§§ 110.1, 110.20 [Amended]

42. Remove the words ‘‘programs and

activities’’ in the last sentence of § 110.1

and the first sentence of § 110.20 and

add, in their place, the words ‘‘programs

or activities’’.

43. Section 110.3 is amended by

adding in alphabetical order a new

definition of ‘‘Program or activity’’ and

adding an authority citation following

the definition to read as follows:

§ 110.3 What definitions apply?

* * * * *

Program or activity means all of the

operations of—

(a)(1) A department, agency, special

purpose district, or other

instrumentality of a State or local

government; or

(2) The entity of a 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;

(b)(1) A college, university, or other

postsecondary institution, or a public

system of higher education; or

Federal Register / Vol. 65, No. 88 / Friday, May 5, 2000 / Proposed Rules 26471

(2) A local educational agency (as

defined in 20 U.S.C. 8801), system of

vocational education, or other school

system;

(c)(1) An entire corporation,

partnership, other private organization,

or an entire sole proprietorship—

(i) If assistance is extended to such

corporation, partnership, private

organization, or sole proprietorship as a

whole; or

(ii) Which is principally engaged in

the business of providing education,

health care, housing, social services, or

parks and recreation; or

(2) 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

(d) Any other entity that is established

by two or more of the entities described

in paragraph (a), (b), or (c) of this

section; any part of which is extended

Federal financial assistance.

(Authority: 42 U.S.C. 6107)

* * * * *

§§ 110.16, 110.17 [Amended]

44. Remove the word ‘‘program’’

wherever it appears in § 110.16 and in

§ 110.17, and add, in its place, the

words ‘‘program or activity’’.

§ 110.35 [Amended]

45. Section 110.35(c)(2) is amended

by removing the word ‘‘Federal’’ in the

first sentence.

§ 110.37 [Amended]

46. Section 110.37(b)(2) is amended

by removing the words ‘‘program or

activity’’ and adding, in their place,

‘‘Federal financial assistance’’.

[FR Doc. 00–10567 Filed 5–4–00; 8:45 am]

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