(a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not:
(1) On the basis of sex, provide different amount 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.
(b) 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 a foreign government which requires 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 paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) 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;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.
(c) 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 § 106.41.
[45 FR 30955, May 9, 1980, as amended at 85 FR 30579, May 19, 2020]
Notes of Decisions
Nicholas Meriwether v. Francesca Hartop, 992 F.3d 492 (6th Cir. 2021).
“Purportedly neutral non-discrimination policies cannot be used to 4Title VII differs from Title IX in important respects: For example, under Title IX, universities must consider sex in allocating athletic scholarships, 34 C.F.R. § 106.37 (c), and may take it into account in…”
Amy Cohen v. Brown Univ., 101 F.3d 155 (1st Cir. 1996).
· cites it 2× “6 The regulations specifically address athletics at 34 C.F.R. §§ 106.37 (c) and 106.41. The regulation at issue in this case, 34 C.”
Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999).
· cites it 2× “41 (c)(2)-(8), (10) and 34 C.F.R. § 106.37 ). The court held that since none of the named plaintiffs were varsity athletes, they did not have standing to assert the equal treatment claims.”
Beasley v. Alabama State Univ., 966 F. Supp. 1117 (M.D. Ala. 1997).
· cites it 3× “The Department of Education (DED), through its Office of Civil Rights (OCR), pursuant to Title IX’s statutory delegation, 2 issued 3 and now administers *1122 regulations implementing Title IX, including rules governing athletic scholarships, 34 C.F.R. § 106.37 (c), and…”
Cohen v. Brown Univ., 879 F. Supp. 185 (D.R.I. 1995).
· cites it 3× “The regulations specifically address athletic program administration at 34 C.F.R. §§ 106.37 (c) 24 and 106.41. Paralleling the language of Title IX, section 106.”
Pederson v. Louisiana State Univ., 213 F.3d 858 (5th Cir. 2000).
· cites it 2× “See 34 C.F.R. § 106.37 (c)(1) (providing that recipients that award athletic scholarships must do so with a view toward reásonable opportunities for such awards to members of both sexes); id.”
Amy Cohen v. Brown Univ., 991 F.2d 888 (1st Cir. 1993).
“2d 267 (1966)) (collecting eases) (brackets in original), the Policy Interpretation limns three major areas of regulatory compliance: 11 “Athletic Financial Assistance (Scholarships),” see 34 C.F.R. § 106.37 (c); “Equivalence in Other Athletic Benefits and Opportunities,” see 34…”
Cohen v. Brown Univ., 809 F. Supp. 978 (D.R.I. 1992).
· cites it 2× “One particular regulation relates to athletic programs, and is codified at 34 C.F.R. § 106.37 (c) and § 106.41. The first part of this regulation addresses athletic scholarship offered for “interscholastic or intercollegiate athletics.”
Biediger v. Quinnipiac Univ., 928 F. Supp. 2d 414 (D. Conn. 2013).
· cites it 3× “The Regulations The Department of Education (“DOE”), the agency tasked with enforcing Title IX, has established a bipartite regulatory framework for intercollegiate athletics, 27 which requires funding recipients to provide members of both sexes (1) equal athletic financial…”
Roberts v. Colorado State Univ., 814 F. Supp. 1507 (D. Colo. 1993).
· cites it 2× “The policy interpretation is divided into three areas of inquiry: Athletic Financial Assistance (Scholarships), 34 C.F.R. § 106.37 (c); Equivalence in Other Athletic Benefits and Opportunities, 34 C.”
Nat'l Wrestling Coaches Ass'n v. United States Dep't of Educ., 263 F. Supp. 2d 82 (D.D.C. 2003).
“41 (c); see also 34 C.F.R. § 106.37 (c)(institutions “must provide reasonable opportunities for such award [of financial assistance] for members of each sex in proportion to the number of students of each sex participating in intercollegiate athletics.”
— 34 C.F.R. § 106.37(a) — 1 case
— 34 C.F.R. § 106.37(b) — 1 case
— 34 C.F.R. § 106.37(c) — 4 cases
— 34 C.F.R. § 106.37(c)(1) — 2 cases
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