University of Hawaii
FROM: Michael Brustein and Melissa Clarry
DATE: November 9, 1999
RE: Federal Register Notice Regarding Title IX Regulations
On October 29, 1999, twenty-two federal agencies (not including the U.S.
Department of Education) issued a notice of proposed rulemaking regarding Title
IX regulations. 64 Fed. Reg. 58568. The notice proposes a Title IX common rule
for those agencies that is almost identical to the current U.S. Department of
Education regulations. Title IX prohibits discrimination on the basis of sex in
education programs or activities that receive Federal financial assistance.
The common rule would provide for the enforcement of Title IX as it applies to
educational programs and activities that receive Federal financial assistance
from the twenty-two agencies. The proposed standards would be the same for all
of the agencies and therefore all of the agencies published the notice jointly.
While proposed regulations were initially drafted by some of the agencies in
1979 and 1980, the rules proposed by the October 29, 1999 notice supercede any
previous proposed rules.
The non-discrimination requirements set forth in the notice are virtually
identical to those established by the U.S. Department of Education. Variations
between the proposed regulations and the Department of Education's regulations
address certain statutory changes and legal decisions that have occurred in the
intervening years since the Department of Education adopted its final Title IX
regulations in 1975.
We have thoroughly reviewed the proposed regulations including the language that
varies from the current Department of Education regulations.
The substantive variations include:
· an expanded exemption for entities controlled by religious institutions as
directed by the Civil Rights Restoration Act of 1987,
· an exemption for activities undertaken by the American Legion to operate Boys
State, Girls State, Boys Nation, Girls Nation authorized by 20 U.S.C. 1681
· an exemption for father-son and mother-daughter activities as long as there
are comparable activities for members of the opposite sex authorized by 20
· an exemption for beauty pageants authorized by 20 U.S.C. 1681(a)(9),
· restoration of the broad interpretation of "program or activity" so that if a
State or local agency receives Federal assistance for one of many functions, all
of the operations of the entire agency are subject to the nondiscrimination
provisions of Title IX as authorized by 20 U.S.C. 1687(1)-(3), and
· inclusion of "abortion neutrality" language authorized by 20 U.S.C. 1688.
It should be noted that all of the proposed variations, while not currently
included in the Department of Education's Title IX regulations, will most likely
be incorporated in future revisions and are currently absent because the
Department's regulations were finalized in 1975.
We would be pleased to assist in the drafting of comments. Comments on the
proposed notice are due on or before December 28, 1999. Written comments should
be submitted to Merrily A. Friedlander, Chief, Coordination and Review Section,
P.O. Box 65960, Washington, DC 20035-6560, fax (202) 307-0595, phone (202)
Attached please find a copy of the notice. If you have further questions
regarding this notice, please contact our office.
Nicole S. Halsted
Brustein & Manasevit
3105 South Street, N.W.
Washington, DC 20007
Phone: (202) 965-3652
Fax: (202) 965-8913
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