Federal Coordination And Compliance Section

[Federal Register: May 5, 2000 (Volume 65, Number 88)]
[Proposed Rules]
[Page 26463-26471]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my00-35]




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Part IV





Department of Education





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34 CFR Parts 100, 104, 106, and 110



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; Proposed Rule





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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.

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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 toll-free 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 long-standing 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



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 institution-wide
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



``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 Sec. 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 Sec. 100.5 (b) and
(d) would be deleted, since they could create similar confusion.
Specifically, current Sec. 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 Sec. 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,



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 ``Sec. '' and a numbered heading; for example,
Sec. 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
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Note: The official version of this document is the document
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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.


Sec. 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''.


Sec. 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''.


Sec. 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);



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:


Sec. 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:


Sec. 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.
* * * * *


Sec. 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''.


Sec. 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:


Sec. 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.


Sec. 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:


Sec. 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--



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''.


Secs. 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).


Sec. 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''.


Sec. 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''.


Sec. 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''.


Sec. 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).


Sec. 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''.


Sec. 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''.


Sec. 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''.


Sec. 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.


Sec. 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''.


Sec. 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''.



Sec. 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.


Sec. 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''.


Sec. 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).


Sec. 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''.


Sec. 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:


Sec. 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)

* * * * *


Sec. 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).


Sec. 106.6 [Amended]

35. Section 106.6 is amended by removing the words ``or benefits
from'' in paragraph (c).


Sec. 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''.


Sec. 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''.


Sec. 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''.


Sec. 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.


Secs. 110.1, 110.20 [Amended]

42. Remove the words ``programs and activities'' in the last
sentence of Sec. 110.1 and the first sentence of Sec. 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:


Sec. 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



(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)
* * * * *


Secs. 110.16, 110.17 [Amended]

44. Remove the word ``program'' wherever it appears in Sec. 110.16
and in Sec. 110.17, and add, in its place, the words ``program or
activity''.


Sec. 110.35 [Amended]

45. Section 110.35(c)(2) is amended by removing the word
``Federal'' in the first sentence.


Sec. 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]
BILLING CODE 4000-01-U



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