34 C.F.R. § 106.34

Access to classes and schools

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(a) General standard. Except as provided for in this section or otherwise in this part, a recipient shall not provide or otherwise carry out any of its education programs or activities separately on the basis of sex, or require or refuse participation therein by any of its students on the basis of sex.

(1) Contact sports in physical education classes. 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.

(2) Ability grouping in physical education classes. 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) Human sexuality classes. Classes or portions of classes in elementary and secondary schools that deal primarily with human sexuality may be conducted in separate sessions for boys and girls.

(4) Choruses. Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.

(b) Classes and extracurricular activities—(1) General standard. Subject to the requirements in this paragraph, a recipient that operates a nonvocational coeducational elementary or secondary school may provide nonvocational single-sex classes or extracurricular activities, if—

(i) Each single-sex class or extracurricular activity is based on the recipient's important objective—

(A) To improve educational achievement of its students, through a recipient's overall established policy to provide diverse educational opportunities, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective; or

(B) To meet the particular, identified educational needs of its students, provided that the single-sex nature of the class or extracurricular activity is substantially related to achieving that objective;

(ii) The recipient implements its objective in an evenhanded manner;

(iii) Student enrollment in a single-sex class or extracurricular activity is completely voluntary; and

(iv) The recipient provides to all other students, including students of the excluded sex, a substantially equal coeducational class or extracurricular activity in the same subject or activity.

(2) Single-sex class or extracurricular activity for the excluded sex. A recipient that provides a single-sex class or extracurricular activity, in order to comply with paragraph (b)(1)(ii) of this section, may be required to provide a substantially equal single-sex class or extracurricular activity for students of the excluded sex.

(3) Substantially equal factors. Factors the Department will consider, either individually or in the aggregate as appropriate, in determining whether classes or extracurricular activities are substantially equal include, but are not limited to, the following: the policies and criteria of admission, the educational benefits provided, including the quality, range, and content of curriculum and other services and the quality and availability of books, instructional materials, and technology, the qualifications of faculty and staff, geographic accessibility, the quality, accessibility, and availability of facilities and resources provided to the class, and intangible features, such as reputation of faculty.

(4) Periodic evaluations. (i) The recipient must conduct periodic evaluations to ensure that single-sex classes or extracurricular activities are based upon genuine justifications and do not rely on overly broad generalizations about the different talents, capacities, or preferences of either sex and that any single-sex classes or extracurricular activities are substantially related to the achievement of the important objective for the classes or extracurricular activities.

(ii) Evaluations for the purposes of paragraph (b)(4)(i) of this section must be conducted at least every two years.

(5) Scope of coverage. The provisions of paragraph (b)(1) through (4) of this section apply to classes and extracurricular activities provided by a recipient directly or through another entity, but the provisions of paragraph (b)(1) through (4) of this section do not apply to interscholastic, club, or intramural athletics, which are subject to the provisions of §§ 106.41 and 106.37(c) of this part.

(c) Schools—(1) General Standard. Except as provided in paragraph (c)(2) of this section, a recipient that operates a public nonvocational elementary or secondary school that excludes from admission any students, on the basis of sex, must provide students of the excluded sex a substantially equal single-sex school or coeducational school.

(2) Exception. A nonvocational public charter school that is a single-school local educational agency under State law may be operated as a single-sex charter school without regard to the requirements in paragraph (c)(1) of this section.

(3) Substantially equal factors. Factors the Department will consider, either individually or in the aggregate as appropriate, in determining whether schools are substantially equal include, but are not limited to, the following: The policies and criteria of admission, the educational benefits provided, including the quality, range, and content of curriculum and other services and the quality and availability of books, instructional materials, and technology, the quality and range of extracurricular offerings, the qualifications of faculty and staff, geographic accessibility, the quality, accessibility, and availability of facilities and resources, and intangible features, such as reputation of faculty.

(4) Definition. For the purposes of paragraph (c)(1) through (3) of this section, the term “school” includes a “school within a school,” which means an administratively separate school located within another school.

[71 FR 62542, Oct. 25, 2006, as amended at 85 FR 30579 May 19, 2020]

Notes of Decisions

Cited in 13 cases (2 in the last 5 years), 1982–2024 · leading case: Reach Academy for Boys & Girls, Inc. v. Delaware Dep't of Educ., 46 F. Supp. 3d 455 (D. Del. 2014).

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Reach Academy for Boys & Girls, Inc. v. Delaware Dep't of Educ., 46 F. Supp. 3d 455 (D. Del. 2014). · cites it 4× “See generally 34 C.F.R. § 106.34 . In 2008, the Delaware General Assembly amended its charter school laws in accordance with the U.”

Doe v. Wood Cnty. Bd. of Educ., 888 F. Supp. 2d 771 (S.D.W. Va 2012). · cites it 6× “” 34 C.F.R. § 106.34 (b)(l)(iii). However, the court also finds that the preliminary relief requested by the plaintiffs is overly broad.”

Women Prisoners of the Dist. of Columbia Dep't of Corr. v. Dist. of Columbia, 877 F. Supp. 634 (D.D.C. 1994). “34 C.F.R. § 106.34 . A recipient of federal funds must also provide equal athletic opportunity.”

Reach Academy for Boys & Girls, Inc. v. Delaware Dep't of Educ., 8 F. Supp. 3d 574 (D. Del. 2014). · cites it 2× “Compare 34 C.F.R. § 106.34 (c)(1) ("General Standard.”

Women Prisoners of the Dist. of Columbia Dep't of Corr. v. Dist. of Columbia, 899 F. Supp. 659 (D.D.C. 1995). “34 C.F.R. § 106.34 (1994). In the area of employment, recipients are prohibited from sexually discriminating when they assist another organization or person in making outside employment available.”

Doe Ex Rel. Doe v. Vermilion Par. Sch. Bd., 421 F. App'x 366 (5th Cir. 2011). “34 C.F.R. § 106.34 (b)(l)(i)-(iv). The regulations list certain exceptions to this general standard and detail- how single-sex education programs will be reviewed.”

Hillsdale Coll. v. Dep't of Health, Educ. & Welfare, 696 F.2d 418 (6th Cir. 1982). “37 ), the students’ access to course offerings ( 34 C.F.R. § 106.34 ), the manner in which the student is housed, whether on or off campus ( 34 C.”

A.N.A ex rel. S.F.A. v. Breckinridge Cnty. Bd. of Educ., 833 F. Supp. 2d 673 (W.D. Ky. 2011). “The plaintiffs have alleged that the BCMS program, purportedly designed in accordance with the provisions of 34 C.F.R. § 106.34 (2007), violates Title IX, 20 U.”

the Texas Educ. Agency & Mike Morath, Comm'r of Educ., in His Off. Capacity v. Academy of Careers & Tech., Inc. D/B/A Academy of Careers & Tech. Charter Sch. (Tex. App. 2015). · cites it 5× “§ substantially related to the achievement of those 1681(a); 34 C.F.R. § 106.34 (c); 14 Del. Code § objectives.”

Neese v. Becerra (N.D. Tex. 2022). · cites it 2× “” 34 C.F.R. § 106.34 (a)(1), (3}+(4). If “on the basis of sex” included “sexual orientation,” these regulations would permit heterosexual-only choirs.”

D.M. v. Minn. State High Sch. League, 335 F. Supp. 3d 1136 (D. Me. 2018). “" 34 C.F.R. § 106.34 (b)(1)(i). But the MSHSL has established that dance team is a sport, not an extracurricular activity.”

D.M. v. Minnesota State High Sch. League (D. Minnesota 2018). “” 34 C.F.R. § 106.34 (b)(1)(i). But the MSHSL has established that dance team is a sport, not an extracurricular activity.”

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— 34 C.F.R. § 106.34(c) — 2 cases

Reach Academy for Boys & Girls, Inc. v. Delaware Dep't of Educ., 46 F. Supp. 3d 455 (D. Del. 2014). “See generally 34 C.F.R. § 106.34 . In 2008, the Delaware General Assembly amended its charter school laws in accordance with the U.”

the Texas Educ. Agency & Mike Morath, Comm'r of Educ., in His Off. Capacity v. Academy of Careers & Tech., Inc. D/B/A Academy of Careers & Tech. Charter Sch. (Tex. App. 2015). “§ substantially related to the achievement of those 1681(a); 34 C.F.R. § 106.34 (c); 14 Del. Code § objectives.”

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