Legal Clips, [October 2006]
The U.S. Department of Education’s Office for Civil Rights (OCR) has published final regulations under Title IX of the Education Amendments of 1972 to expand flexibility to offer single-sex schools, classes, and extracurricular activities in nonvocational elementary and secondary schools. Title IX prohibits gender-based discrimination in federally funded education programs. Information on the regulations as initially proposed in 2004 and NSBA’s comments on them are provided below. The new regulations were proposed to allow single-sex schools and single-sex classes, as long as both sexes are treated with substantial equality. This would not necessarily require that single-sex schools and programs always be offered to both genders. For example, OCR no longer interprets Title IX to require that if a district offers a single-sex school to students of one sex it must offer another single-sex school to the other. A single-sex program would, however, have to be substantially related to an "important governmental or educational objective," which the regulations define as either "to provide a diversity of educational options to parents and students" or "to meet the particular identified educational needs of students."
As revised in response to comments, the final regulations (1) clarify that the same guidelines apply to extracurricular programs as apply to classes; (2) clarify that participation in single-sex programs must be completely voluntary; (3) include geographic accessibility and "intangible factors" such as "reputation of faculty" in the non-exhaustive list of factors to be considered in determining whether there is the required substantial equality of classes and schools, and clarify that these factors may be considered individually or in the aggregate; (4) require that funding recipients evaluate programs at least every two years to ensure they are implemented in a nondiscriminatory fashion, and clarify that this means that they do not rely on overly broad generalizations about the different talents, capacities, and preferences of either sex; and (5) require that a recipient relying on the "diversity of educational options" interest when offering single-sex classes must have an established policy of offering diverse opportunities not limited to single-sex and coeducational schools and classes, such as charter schools, magnet schools, elective classes, and opportunities to take classes at other schools.
OCR declined to (1) base all of its Title IX interpretations on analogous constitutional principles, noting that recipients "may wish to consult legal counsel regarding how the Equal Protection Clause or other applicable legal authorities prohibiting sex discrimination" may affect same-sex proposals; (2) require federal pre-approval of such proposals; (3) require that comparable single-sex programs must in all cases be offered both sexes; or (4) eliminate the exemption for charter schools that are single-school local educational agencies (LEAs) from the requirements that apply to other public schools. OCR also indicated it will examine recipients that provide significantly more single-sex opportunities to students of one sex than to the other. The final regulations are effective Nov. 24, 2006. Information on recent proposals for same-gender programs and resulting legal actions is provided at the third NSBA School Law pages link below. For more reactions and discussion, see the BoardBuzz entry.
71 Fed. Reg. 62,530 (Oct. 25, 2006)
[OCR Final Regulations]
[NSBA School Law pages on proposed regulations]
[NSBA School Law pages on NSBA comments to proposed regulations]
[NSBA School Law pages on recent controversies]
[BoardBuzz on final regulations]