CODE:ACB

TITLE IX COMPLIANCE

TO ALL EMPLOYEES OF THE LOGAN CITY SCHOOL DISTRICT:


The Title IX Regulation, 86.3, requires that by July 21, 1976, every education institution or agency receiving federal funds must complete a self-evaluation of its compliance with Title IX:

  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.

TO COMPLY WITH TITLE IX, all employees must also be informed of regulation requirements for education agency policies and practices which are as follows.

ACCESS TO GENERAL COURSES

The Title IX Regulation, 86.34, provides that an institution or agency may 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 as sex (written out in full on the next page).

Further, according to 86.36 (c):

Where a recipient finds that a par

icular 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.

86.34 (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 quality which may result in a chorus. or choruses of one or predominantly one sex.

ACCESS TO PHYSICAL EDUCATION

The Regulation

86.34 of the Title IX Regulation states that an institution or agency may 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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. Portions of classes in elementary and secondary schools which deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.

ACCESS TO VOCATIONAL EDUCATION

86.21 Admission

  1. General. No person shall, on the basis of sex, be denied admission, or be subject to discrimination in admission, by any recipient to which this Subpart applies.

  2. 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:

      1. give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;

      2. apply numerical limitations upon the number of proportion of persons of either sex who may be admitted; or

      3. 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.

    3. Further, an institution of vocational education may not discriminate on the basis of sex in making admissions decisions related to marital or parental status.

  3. Prohibitions relating to marital or parental status.

  4. 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:

    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 admission, 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.

86.22 Preference in admission.

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 predominately 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.

86.23 Recruitment.

  1. Nondiscriminatory recruitment. A recipient to which this Subpart applies shall not discriminate on the basis of sex in this recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to 86.3 (a) (finding of discrimination by the Director, Office for Civil Rights, HEW), and may choose to undertake such efforts as affirmative action pursuant to 85.3 (b) (voluntary affirmative action efforts).

  2. 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 predominately members of one sex, if such actions have the effect of discriminating on the basis of sex in violation of this Subpart.

COUNSELING

86.36 of the Regulation to implement Title IX prohibits sex discrimination in counseling:

86.36 Counseling and use of appraisal and counseling materials.

  1. 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.

  2. 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 offer 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.

  3. 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.

THE TREATMENT OF STUDENTS

The Regulation

In prohibiting discrimination on the basis of sex in the treatment of any student in an education program or activity, 86.31(a) of the Regulation implementing Title IX generally provides that:

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.

86.31 (b) specifically requires that:

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. discriminate against any person in the application of any rules of appearance;

  6. is omitted as not relevant to local education agencies;

  7. 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;

  8. otherwise limit any person in the enjoyment of any rights, privilege, advantage, or opportunity.

According to 86.31 (d), these provisions prohibiting discrimination also apply to programs not operated by the recipient:

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.

In order to comply with this requirement, a recipient agency or institution:

  1. 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

  2. shall not facilitate, require, permit or consider such participation if such action occurs.

The Title IX Regulation further specifies prohibitions of sex discrimination in the treatment of students in the following areas:

86.38 Employment assistance to students.

  1. Assistance by recipient in making available outside employment.
  2. A recipient which assists any agency, organization or person in making employment available to any of its students:

    1. shall assure itself that such employment is made available without discrimination on the basis of sex; and

    2. shall not render such services to any agency, organization, or person which discriminates on the basis of sex in its employment practices.

  3. Employment of students by recipients. A recipient which employs any of its students shall not do so in a manner which violates the employment provisions of the Regulation.

86.39 Health insurance benefits and services.

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 ... the employment portion of the Regulation 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.

Title IX also prohibits sex discrimination in the provision of financial assistance to students and in policies or practices relating to student marital or parental status. The sections of the Regulation governing these aspects of student treatment will be covered in separate sections of this document.

The Title IX Regulation does not prohibit the differential treatment of students regarding use of locker room and toilet facilities; it does require that such facilities be comparable for each sex.

86.33 Comparable facilities.

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.

ATHLETICS

The Regulation

86.41 of the Title IX Regulation states that an institution or a district must develop and operate athletic programs according to the following specifications:

  1. 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 an interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.

  2. 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 been previously 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.

  3. 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 Director may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

  4. Adjustment Period. A recipient which operates or sponsors interscholastic club or intramural athletics at the elementary school level shall comply fully with this section.

FINANCIAL ASSISTANCE

The Regulation

The Regulation implementing Title IX contains several sections which relate to scholarships and financial assistance as administered by local education agencies:

86.37 Financial assistance.

  1. General. Except as provided in paragraphs (b), (c), and (d) of this section, in providing financial assistance to any of its students, a recipient shall not: (1) on the basis of sex, provide different amounts 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.

  2. 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 foreign government which require 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 subparagraph (l) of this paragraph, recipients shall develop and use procedures under which:

      1. 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;

      2. an appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under subparagraph (i) of this paragraph; and

      3. no student is denied the award for which he or she was selected under subparagraph (i) of this paragraph because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.

  3. 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 86.41 of this Part.

STUDENT MARITAL STATUS

The Regulation

86.40 of the Regulation implementing Title IX establishes requirements for non-discrimination on the basis of sex in policies or practices relating to student marital or parental status.

86.40 Marital or parental status.

  1. 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.

  2. 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 subparagraph (1) of this paragraph, 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.

EMPLOYMENT

The Regulation

The Title IX Regulation provides comprehensive prohibitions of discrimination in the employment policies and practices of education institutions or agencies. It outlines general requirements for nondiscrimination:

86.51 Employment.

  1. 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 therefore 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 ... (Regulation).

    86.51 also delineates the specific areas of employment policy and practice to which these provisions apply:

  2. Application.

  3. The provisions of this Subpart apply to:

    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.

    Further specification of the application of these general provisions is provided in 86.52-86.61.

86.52 Employment criteria.

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:

  1. use of such test or other criterion is shown to predict validly successful performance in the position in question; and

  2. alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.

86.53 Recruitment.

  1. 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.

  2. 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.

86.54 Compensation.

A recipient shall not make or enforce any policy or practice which on the basis of sex:

  1. makes distinctions in rates of pay or other compensation;

  2. 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.

86.55 Job classification and structure.

A recipient shall not:
  1. classify a job as being for males or for females;

  2. maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or

  3. 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 86.51.

86.56 Fringe Benefits.

  1. “Fringe benefits" defined. For purposes of this Part, "fringe benefits" means: any medical, hospital, accident, life insurance, 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 86.54.

  2. Prohibitions. A recipient shall not:

    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.

86.57 Marital or parental status.

  1. 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.

  2. 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 or pregnancy, or recovery therefrom.

  3. 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.

  4. 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.

86.58 Effect of State or local law or other requirements:

  1. 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.

  2. 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.

86.59 Advertising.

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.

86.60 Pre-employment inquiries.

  1. 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."

  2. 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.

86.61 Sex as a bona-fide occupational qualification.

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 stereo-typed 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.