[Federal Register: May 8, 2002 (Volume 67, Number 89)]
[Page 31101-31103]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

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Part VI

Department of Education


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

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

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 Federal Register 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\

    \1\ The statue 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 organizations 20 U.S.C. 1681(a)(3).

    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) ``[p]ortions 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\

    \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 

    Single-sex schools: The Title IX statute exempts from its coverage 
the admissions practices of non-vocational elementary and secondary 

    \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.

    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

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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-

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

    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.

    \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.)

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

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

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

    Dated: May 3, 2002.
Rod Paige,
Secretary of Education.
[FR Doc. 02-11477 Filed 5-7-02; 8:45 am]