STATUTE
20 USC Sec. 1681 TITLE 20 - EDUCATION CHAPTER 38 - DISCRIMINATION BASED ON SEX OR BLINDNESS
No 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, except that:
in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education;
in regard to admissions to educational institutions, this section shall not apply (a) for one year from June 23, 1972, nor for six years after June 23, 1972, in the case of an educational institution which has begun the process of changing from being an institution which admits only students of one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education or (b) for seven years from the date an educational institution begins the process of changing from being an institution which admits only students of only one sex to being an institution which admits students of both sexes, but only if it is carrying out a plan for such a change which is approved by the Secretary of Education, whichever is the later;
this section shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization;
this section shall not apply to an educational institution whose primary purpose is the training of individuals for the military services of the United States, or the merchant marine;
in regard to admissions this section shall not apply to any public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex;
this section shall not apply to membership practices -
this section shall not apply to -
this section shall not preclude 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 for students of the other sex; and
this section shall not apply with respect to any scholarship or other financial assistance awarded by an institution of higher education to any individual because such individual has received such award in any pageant in which the attainment of such award is based upon a combination of factors related to the personal appearance, poise, and talent of such individual and in which participation is limited to individuals of one sex only, so long as such pageant is in compliance with other nondiscrimination provisions of Federal law.
REGULATIONS
Section 106.1 - Purpose and effective date.
The purpose of this part is to effectuate title IX of the
Education Amendments of 1972, as amended by Pub. L. 93-568,
88 Stat. 1855 (except sections 904 and 906 of those Amendments)
which is designed to eliminate (with certain exceptions) discrimination
on the basis of sex in any education program or activity receiving
Federal financial assistance, whether or not such program or
activity is offered or sponsored by an educational institution
as defined in this part. This part is also intended to effectuate
section 844 of the Education Amendments of 1974, Pub. L. 93-
380, 88 Stat. 484. The effective date of this part shall be July 21, 1975.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682, as amended by Pub. L.
93-568, 88 Stat. 1855, and sec. 844, Education Amendments of
1974, 88 Stat. 484, Pub. L. 93-380)
(a) Title IX means title IX of the Education Amendments of 1972, Pub. L. 92-318, as amended by section 3 of Pub. L. 93- 568, 88 Stat. 1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.
(b) Department means the Department of Education.
(c) Secretary means the Secretary of Education.
(d) Assistant Secretary means the Assistant Secretary for Civil Rights of the Department.
(e) Reviewing Authority means that component of the Department delegated authority by the Secretary to appoint, and to review the decisions of, administrative law judges in cases arising under this part.
(f) Administrative law judge means a person appointed by the reviewing authority to preside over a hearing held under this part.
(g) Federal financial assistance means any of the following, when authorized or extended under a law administered by the Department:
(1) A grant or loan of Federal financial assistance, including funds made available for:(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement which has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
(h) Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof.
(i) Applicant means one who submits an application, request, or plan required to be approved by a Department official, or by a recipient, as a condition to becoming a recipient.
(j) Educational institution means a local educational agency (LEA) as defined by section 1001(f) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 3381), a preschool, a private elementary or secondary school, or an applicant or recipient of the type defined by paragraph (k), (l), (m), or (n) of this section.
(k) Institution of graduate higher education means an institution which:
(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; or
(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
(l) Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of college level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body which certifies credentials or offers degrees, but which may or may not offer academic study.
(m) Institution of professional education means an institution (except any institution of undergraduate higher education) which offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary.
(n) Institution of vocational education means a school or institution (except an institution of professional or graduate or undergraduate higher education) which has as its primary purpose preparation of students to pursue a technical, skilled, or semiskilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study.
(o) 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.
(p) 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.
(q) Student means a person who has gained admission.
(r) Transition plan means a plan subject to the approval of
the Secretary pursuant to section 901(a)(2) of the Education
Amendments of 1972, under which an educational institution operates
in making the transition from being an educational institution
which admits only students of one sex to being one which admits
students of both sexes without discrimination.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of such discrimination.
(b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex. Nothing herein shall be interpreted to alter any affirmative action obligations which a recipient may have under Executive Order 11246.
(c) Self-evaluation. Each recipient education institution shall, within one year of the effective date of this part:
(1) Evaluate, in terms of the requirements of this part, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient's education program or activity;
(2) Modify any of these policies and practices which do not or may not meet the requirements of this part; and
(3) Take appropriate remedial steps to eliminate the effects of any discrimination which resulted or may have resulted from adherence to these policies and practices.
(d) Availability of self-evaluation and related materials.
Recipients shall maintain on file for at least three years following
completion of the evaluation required under paragraph (c) of
this section, and shall provide to the Assistant Secretary upon
request, a description of any modifications made pursuant to
paragraph (c) (ii) of this section and of any remedial steps
taken pursuant to paragraph (c) (iii) of this section.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) General. Every application for Federal financial assistance for any education program or activity shall as condition of its approval contain or be accompanied by an assurance from the applicant or recipient, satisfactory to the Assistant Secretary, that each education program or activity operated by the applicant or recipient and to which this part applies will be operated in compliance with this part. An assurance of compliance with this part shall not be satisfactory to the Assistant Secretary if the applicant or recipient to whom such assurance applies fails to commit itself to take whatever remedial action is necessary in accordance with section 106.3(a) to eliminate existing discrimination on the basis of sex or to eliminate the effects of past discrimination whether occurring prior or subsequent to the submission to the Assistant Secretary of such assurance.
(b) Duration of obligation.
(1) In the case of Federal financial assistance extended to provide real property or structures thereon, such assurance shall obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the period during which Federal financial assistance is extended.
(c) Form. The Director will specify the form of the assurances
required by paragraph (a) of this section and the extent to
which such assurances will be required of the applicant's or
recipient's subgrantees, contractors, subcontractors, transferees,
or successors in interest.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Effect of other Federal provisions. The obligations imposed
by this part are independent of, and do not alter, obligations
not to discriminate on the basis of sex imposed by Executive
Order 11246, as amended; sections 704 and 855 of the Public
Health Service Act (42 U.S.C. 292d and 298b-2); Title VII of
the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the
Equal Pay Act (29 U.S.C. 206 and 206(d)); and any other Act
of Congress or Federal regulation.
(Authority: Secs. 901, 902, 905, Education Amendments of 1972,
86 Stat. 373, 374, 375; 20 U.S.C. 1681, 1682, 1685)
(b) Effect of State or local law or other requirements. The obligation to comply with this part is not obviated or alleviated by any State or local law or other requirement which would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.
(c) Effect of rules or regulations of private organizations.
The obligation to comply with this part is not obviated or alleviated
by any rule or regulation of any organization, club, athletic
or other league, or association which would render any applicant
or student ineligible to participate or limit the eligibility
or participation of any applicant or student, on the basis of
sex, in any education program or activity operated by a recipient
and which receives or benefits from Federal financial assistance.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
The obligation to comply with this part is not obviated or
alleviated because employment opportunities in any occupation
or profession are or may be more limited for members of one
sex than for members of the other sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to such recipient alleging its noncompliance with this part or alleging any actions which would be prohibited by this part. The recipient shall notify all its students and employees of the name, office address and telephone number of the employee or employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt
and publish grievance procedures providing for prompt and equitable
resolution of student and employee complaints alleging any action
which would be prohibited by this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Notification of policy. (1) Each recipient shall implement specific and continuing steps to notify applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral of applicants for admission and employment, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, that it does not discriminate on the basis of sex in the educational programs or activities which it operates, and that it is required by title IX and this part not to discriminate in such a manner. Such notification shall contain such information, and be made in such manner, as the Assistant Secretary finds necessary to apprise such persons of the protections against discrimination assured them by title IX and this part, but shall state at least that the requirement not to discriminate in education programs and activities extends to employment therein, and to admission thereto unless Subpart C does not apply to the recipient, and that inquiries concerning the application of title IX and this part to such recipient may be referred to the employee designated pursuant to Section 106.8, or to the Assistant Secretary. (2) Each recipient shall make the initial notification required by paragraph (a) (1) of this section within 90 days of the effective date of this part or of the date this part first applies to such recipient, whichever comes later, which notification shall include publication in: (i) Local newspapers; (ii) newspapers and magazines operated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and (iii) memoranda or other written communications distributed to every student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a statement of the policy described in paragraph (a) of this section in each announcement, bulletin, catalog, or application form which it makes available to any person of a type, described in paragraph (a) of this section, or which is otherwise used in connection with the recruitment of students or employees. (2) A recipient shall not use or distribute a publication of the type described in this paragraph which suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by this part.
(c) Distribution. Each recipient shall distribute without
discrimination on the basis of sex each publication described
in paragraph (b) of this section, and shall apprise each of
its admission and employment recruitment representatives of
the policy of nondiscrimination described in paragraph (a) of
this section, and require such representatives to adhere to
such policy.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
Section 106.11 - Application.
Except as provided in this subpart, this part 106 applies
to every recipient and to each education program or activity
operated by such recipient which receives or benefits from Federal
financial assistance.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Application. This part does not apply to an educational institution which is controlled by a religious organization to the extent application of this part would not be consistent with the religious tenets of such organization.
(b) Exemption. An educational institution which wishes to
claim the exemption set forth in paragraph (a) of this section,
shall do so by submitting in writing to the Assistant Secretary
a statement by the highest ranking official of the institution,
identifying the provisions of this part which conflict with
a specific tenet of the religious organization.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
This part does not apply to an educational institution whose
primary purpose is the training of individuals for a military
service of the United States or for the merchant marine.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Social fraternities and sororities. This part does not apply to the membership practices of social fraternities and sororities which are exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, the active membership of which consists primarily of students in attendance at institutions of higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts and Camp Fire Girls. This part does not apply to the membership practices of the Young Men's Christian Association, the Young Women's Christian Association, the Girl Scouts, the Boy Scouts and Camp Fire Girls.
(c) Voluntary youth service organizations. This part does
not apply to the membership practices of voluntary youth service
organizations which are exempt from taxation under section 501(a)
of the Internal Revenue Code of 1954 and the membership of which
has been traditionally limited to members of one sex and principally
to persons of less than nineteen years of age.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682; sec. 3(a) of P.L. 93-568,
88 Stat. 1862 amending Sec. 901)
(a) Admissions to educational institutions prior to June 24, 1973, are not covered by this part.
(b) Administratively separate units. For the purposes only of this section, Section 106.16 and Section 106.17, and Subpart C, each administratively separate unit shall be deemed to be an educational institution.
(c) Application of Subpart C. Except as provided in paragraphs (d) and (e) of this section, Subpart C applies to each recipient. A recipient to which Subpart C applies shall not discriminate on the basis of sex in admission or recruitment in violation of that subpart.
(d) Educational institutions. Except as provided in paragraph (e) of this section as to recipients which are educational institutions, Subpart C applies only to institutions of vocational education, professional education, graduate higher education, and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education.
Subpart C does not apply to any public institution of undergraduate
higher education which traditionally and continually from its
establishment has had a policy of admitting only students of
one sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Application. This section applies to each educational
institution to which Subpart C applies which:
(1) Admitted only students of one sex as regular students
as of June 23, 1972; or
(2) Admitted only students of one sex as regular students
as of June 23, 1965, but thereafter admitted as regular students,
students of the sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution
to which this section applies shall not discriminate on the
basis of sex in admission or recruitment in violation of Subpart
C unless it is carrying out a transition plan approved by the
Secretary as described in Section 106.17, which plan provides for
the elimination of such discrimination by the earliest practicable
date but in no event later than June 23, 1979.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Submission of plans. An institution to which Section 106.16 applies and which is composed of more than one administratively separate unit may submit either a single transition plan applicable to all such units, or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on Education (FICE) Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions concerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively separate unit admits students of both sexes, as regular students and, if so, when it began to do so.
(3) Identify and describe with respect to the educational institution or administratively separate unit any obstacles to admitting students without discrimination on the basis of sex.
(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 Section 106.16 applies shall result in treatment of applicants to or students of such recipient in violation of Subpart C unless such treatment is necessitated by an obstacle identified in paragraph (b) (3) of this section and a schedule for eliminating that obstacle has been provided as required by paragraph (b) (4) of this section.
(d) Effects of past exclusion. To overcome the effects of
past exclusion of students on the basis of sex, each educational
institution to which Section 106.16 applies shall include in its transition
plan, and shall implement, specific steps designed to encourage
individuals of the previously excluded sex to apply for admission
to such institution. Such steps shall include instituting recruitment
programs which emphasize the institution's commitment to enrolling
students of the sex previously excluded.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
Section 106.21 - Admission.
(a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which this subpart applies, except as provided in Section 106.16 and Sectopm 106.17
(b) Specific prohibitions. (1) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies shall not:
(i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for admission which has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria which do not have such a disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which this subpart applies:
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)(1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant which treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice which so discriminates or excludes;
(3) Shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
(4) 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 admision, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by this part.
A recipient to which this subpart applies shall not give preference
to applicants for admission, on the basis of attendance at any
educational institution or other school or entity which admits
as students only or predominantly members of one sex, if the
giving of such preference has the effect of discriminating on
the basis of sex in violation of this subpart.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Nondiscriminatory recruitment. A recipient to which this subpart applies shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to Section 106.3(a), and may choose to undertake such efforts as affirmative action pursuant to Section 106.3(b).
(b) Recruitment at certain institutions. A recipient to which
this subpart applies shall not recruit primarily or exclusively
at educational institutions, schools or entities which admit
as students only or predominantly members of one sex, if such
actions have the effect of discriminating on the basis of sex
in violation of this subpart.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
Section 106.31 - Education programs and activities.
(a) General. Except as provided elsewhere in this part, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives or benefits from Federal financial assistance. This subpart does not apply to actions of a recipient in connection with admission of its students to an education program or activity of (1) a recipient to which Subpart C does not apply, or (2) an entity, not a recipient, to which Subpart C would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in this subpart, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person which discriminates on the basis of sex in providing any aid, benefit or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution to study at a foreign institution. A recipient educational institution may administer or assist in the administration of scholarships, fellowships, or other awards established by foreign or domestic wills, trusts, or similar legal instruments, or by acts of foreign governments and restricted to members of one sex, which are designed to provide opportunities to study abroad, and which are awarded to students who are already matriculating at or who are graduates of the recipient institution; Provided, a recipient educational institution which administers or assists in the administration of such scholarships, fellowships, or other awards which are restricted to members of one sex provides, or otherwise makes available reasonable opportunities for similar studies for members of the other sex. Such opportunities may be derived from either domestic or foreign sources.
(d) Programs not operated by recipient. (1) This paragraph
applies to any recipient which requires participation by any
applicant, student, or employee in any education program or
activity not operated wholly by such recipient, or which facilitates,
permits, or considers such participation as part of or equivalent
to an education program or activity operated by such recipient,
including participation in educational consortia and cooperative
employment and student-teaching assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure
itself that the operator or sponsor of such other education
program or activity takes no action affecting any applicant,
student, or employee of such recipient which this part would
prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such
participation if such action occurs.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(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 provided by such recipient.
(2) A recipient which, through solicitation, listing, approval
of housing, or otherwise, assists any agency, organization,
or person in making housing available to any of its students,
shall take such reasonable action as may be necessary to assure
itself that such housing as is provided to students of one sex,
when compared to that provided to students of the other sex,
is as a whole:
(i) Proportionate in quantity and (ii) comparable in quality
and cost to the student. A recipient may render such assistance
to any agency, organization, or person which provides all or
part of such housing to students only of one sex.
(Authority: Secs. 901, 902, 907, Education Amendments of 1972,
86 Stat. 373, 374, 375; 20 U.S.C. 1681, 1682, 1686)
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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374)
A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
(a) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from the effective date of this regulation. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from the effective date of this regulation.
(b) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.
(c) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.
(d) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards which do not have such effect.
(e) Portions of classes in elementary and secondary schools which deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
(f) Recipients may make requirements based on vocal range
or quality which may result in a chorus or choruses of one or
predominantly one sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
A recipient which is a local educational agency shall not, on the basis of sex, exclude any person from admission to:
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)(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.
(a) Counseling. A recipient shall not discriminate against any person on the basis of sex in the counseling or guidance of students or applicants for admission.
(b) Use of appraisal and counseling materials. A recipient which uses testing or other materials for appraising or counseling students shall not use different materials for students on the basis of their sex or use materials which permit or require different treatment of students on such basis unless such different materials cover the same occupations and interest areas and the use of such different materials is shown to be essential to eliminate sex bias. Recipients shall develop and use internal procedures for ensuring that such materials do not discriminate on the basis of sex. Where the use of a counseling test or other instrument results in a substantially disproportionate number of members of one sex in any particular course of study or classification, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that
a particular class contains a substantially disproportionate
number of individuals of one sex, the recipient shall take such
action as is necessary to assure itself that such disproportion
is not the result of discrimination on the basis of sex in counseling
or appraisal materials or by counselors.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not:
(1) On the basis of sex, provide different amount or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate;
(2) through solicitation, listing, approval, provision of facilities or other services, assist any foundation, trust, agency, organization, or person which provides assistance to any of such recipient's students in a manner which discriminates on the basis of sex; or
(3) apply any rule or assist in application of any rule concerning eligibility for such assistance which treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments.
(1) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established pursuant to domestic or foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign government which requires that awards be made to members of a particular sex specified therein; Provided, That the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
(2) Separate athletic scholarships or grants-in-aid for members
of each sex may be provided as part of separate athletic teams
for members of each sex to the extent consistent with this paragraph
and 106.41.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682; and Sec. 844, Education
Amendments of 1974, Pub. L. 93-380, 88 Stat. 484)
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 which would
violate Subpart E of this part if it were provided to employees
of the recipient. This section shall not prohibit a recipient
from providing any benefit or service which may be used by a
different proportion of students of one sex than of the other,
including family planning services. However, any recipient which
provides full coverage health service shall provide gynecological
care.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Status generally. A recipient shall not apply any rule concerning a student's actual or potential parental, family, or marital status which treats students differently on the basis of sex.
(b) Pregnancy and related conditions.
(1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.
(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation in the normal education program or activity so long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.
(3) A recipient which operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section shall ensure that the instructional program in the separate program is comparable to that offered to non-pregnant students.
(4) 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 which such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient's educational program or activity.
(5) In the case of a recipient which does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began.
(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 this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.
(c) Equal opportunity. A recipient which operates or sponsors interscholastic, intercollegiate, club or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available the Director will consider, among other factors:
(1) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(2) The provision of equipment and supplies;
(3) Scheduling of games and practice time;
(4) Travel and per diem allowance;
(5) Opportunity to receive coaching and academic tutoring;
(6) Assignment and compensation of coaches and tutors;
(7) Provision of locker rooms, practice and competitive facilities;
(8) Provision of medical and training facilities and services;
(9) Provision of housing and dining facilities and services;
(10) Publicity.
Unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the Assistant Secretary may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
(d) Adjustment period. A recipient which operates or sponsors
interscholastic, intercollegiate, club or intramural athletics
at the elementary school level shall comply fully with this
section as expeditiously as possible but in no event later than
one year from the effective date of this regulation. A recipient
which operates or sponsors interscholastic, intercollegiate,
club or intramural athletics at the secondary or post-secondary
school level shall comply fully with this section as expeditiously
as possible but in no event later than three years from the
effective date of this regulation.
Section 106.51 - Employment.
(a) General.
(1) No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part- time, under any education program or activity operated by a recipient which receives or benefits from Federal financial assistance.
(2) A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner and shall not limit, segregate, or classify applicants or employees in any way which could adversely affect any applicant's or employee's employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by this subpart, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the basis of attendance at any educational institution or entity which admits as students only or predominantly members of one sex, if the giving of such preferences has the effect of discriminating on the basis of sex in violation of this part.
(b) Application. The provisions of this subpart apply to:
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)(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.
A recipient shall not administer or operate any test or other
criterion for any employment opportunity which has a disproportionately
adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict
validly successful performance in the position in question;
and
(b) Alternative tests or criteria for such purpose, which
do not have such disproportionately adverse effect, are shown
to be unavailable.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a recipient has been found to be presently discriminating on the basis of sex in the recruitment or hiring of employees, or has been found to have in the past so discriminated, the recipient shall recruit members of the sex so discriminated against so as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily
or exclusively at entities which furnish as applicants only
or predominantly members of one sex if such actions have the
effect of discriminating on the basis of sex in violation of
this subpart.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
A recipient shall not make or enforce any policy or practice which, on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex
at a rate less than that paid to employees of the opposite sex
for equal work on jobs the performance of which requires equal
skill, effort, and responsibility, and which are performed under
similar working conditions.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority
systems, career ladders, or tenure systems for similar jobs,
position descriptions, or job requirements which classify persons
on the basis of sex, unless sex is a bona-fide occupational
qualification for the positions in question as set forth in
Section 106.61.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) ``Fringe benefits'' defined. For purposes of this part, fringe benefits means: Any medical, hospital, accident, life insurance or retirement benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and any other benefit or service of employment not subject to the provision of Section 106.54.
(b) Prohibitions. A recipient shall not:
(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682)(1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee's sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan which does not provide either for equal periodic benefits for members of each sex, or for equal contributions to the plan by such recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or retirement plan which establishes different optional or compulsory retirement ages based on sex or which otherwise discriminates in benefits on the basis of sex.
(a) General. A recipient shall not apply any policy or take any employment action:
(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment which treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee's or applicant's family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. A recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom and any temporary disability resulting therefrom as any other temporary disability for all job related purposes, including commencement, duration and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient which does
not maintain a leave policy for its employees, or in the case
of an employee with insufficient leave or accrued employment
time to qualify for leave under such a policy, a recipient shall
treat pregnancy, childbirth, false pregnancy, termination of
pregnancy and recovery therefrom as a justification for a leave
of absence without pay for a reasonable period of time, at the
conclusion of which the employee shall be reinstated to the
status which she held when the leave began or to a comparable
position, without decrease in rate of compensation or loss of
promotional opportunities, or any other right or privilege of
employment.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Prohibitory requirements. The obligation to comply with this subpart is not obviated or alleviated by the existence of any State or local law or other requirement which imposes prohibitions or limits upon employment of members of one sex which are not imposed upon members of the other sex.
(b) Benefits. A recipient which provides any compensation,
service, or benefit to members of one sex pursuant to a State
or local law or other requirement shall provide the same compensation,
service, or benefit to members of the other sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
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.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
(a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is ``Miss or Mrs.''
(b) Sex. A recipient may make pre-employment inquiry as to
the sex of an applicant for employment, but only if such inquiry
is made equally of such applicants of both sexes and if the
results of such inquiry are not used in connection with discrimination
prohibited by this part.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
A recipient may take action otherwise prohibited by this subpart
provided it is shown that sex is a bona-fide occupational qualification
for that action, such that consideration of sex with regard
to such action is essential to successful operation of the employment
function concerned. A recipient shall not take action pursuant
to this section which is based upon alleged comparative employment
characteristics or stereotyped characterizations of one or the
other sex, or upon preference based on sex of the recipient,
employees, students, or other persons, but nothing contained
in this section shall prevent a recipient from considering an
employee's sex in relation to employment in a locker room or
toilet facility used only by members of one sex.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)
Section 106.71 - Procedures.
The procedural provisions applicable to title VI of the Civil
Rights Act of 1964 are hereby adopted and incorporated herein
by reference. These procedures may be found at 34 CFR 100.6-
100.11 and 34 CFR, part 101.
(Authority: Secs. 901, 902, Education Amendments of 1972, 86
Stat. 373, 374; 20 U.S.C. 1681, 1682)