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through portions of historic properties handicaps. The definitions, requirethat cannot otherwise be made accessi. ments, and standards of the Architecble; or

tural Barriers Act (42 U.S.C. 4151(iii) Adopting other innovative meth- 4157), as established in 41 CFR 101ods.

19.600 to 101-19.607, apply to buildings (c) Time period for compliance. The covered by this section. Department shall comply with the obligations established under this section 88 105.34–105.39 [Reserved) within 60 days of the effective date of this part except that if structural

8 105.40 Communications. changes in facilities are undertaken, (a) The Department shall take apthe changes shall be made within 3 propriate steps to ensure effective years of the effective date of this part, communication with applicants, parbut in any event as expeditiously as ticipants, personnel of other Federal possible.

entities, and members of the public, as (d) Transition plan. (1) In the event follows: that structural changes to facilities (1) (i) The Department shall furnish will be undertaken to achieve program appropriate auxiliary aids if necessary accessibility, the Department shall de- to afford an individual with handicaps velop, within six months of the effec- an equal opportunity to participate in, tive date of this part, a transition plan and enjoy the benefits of, a program setting forth the steps necessary to or activity conducted by the Departcomplete those changes.

ment. (2) The Department shall provide an (ii) In determining what type of auxopportunity to interested persons, in- iliary aid is necessary, the Department cluding individuals with handicaps or shall give primary consideration to the organizations representing individuals request of the individual with handiwith handicaps, to participate in the caps. development of the transition plan by (iii) The Department need not prosubmitting comments (both oral and vide individually prescribed devices, written). A copy of the transition plan readers for personal use or study, or must be made available for public in- other devices of a personal nature. spection.

(2) If the Department communicates (3) The plan must, at a minimum- with applicants and beneficiaries by

(i) Identify physical obstacles in the telephone, telecommunication devices Department's facilities that limit the for deaf persons (TDDs) or equally efaccessibility of its programs or activi- fective telecommunication systems ties to individuals with handicaps; must be used.

(ii) Describe in detail the methods (b) The Department shall ensure that will be used to make the facilities that interested persons, including peraccessible;

sons with impaired vision or hearing, (iii) Specify the schedule for taking can obtain information as to the existthe steps necessary to achieve compli- ence and location of accessible servance with this section and, if the time ices, activities, and facilities. period of the transition plan is longer (c) The Department shall provide than one year, identify steps that will signs at a primary entrance to each of be taken during each year of the tran- its inaccessible facilities, directing sition period; and

users to a location at which they can (iv) Indicate the official responsible obtain information about accessible fafor implementation of the plan.

cilities. The international symbol for

accessibility must be used at each pri8 105.33 Program accessibility: New con

mary entrance of an accessible facility. struction and alterations.

(d) (1) This section does not require Each building or part of a building the Department to take any action that is constructed or altered by, on that it can demonstrate would result behalf of, or for the use of, the De- in a fundamental alteration in the partment must be designed, construct- nature of a program or activity or in ed, or altered so as to be readily acces- undue financial and administrative sible to and usable by individuals with burdens.

(2) The Department has the burden of proving that compliance with $ 105.40 would result in that alteration or those burdens.

(3) The decision that compliance would result in that alteration or those burdens must be made by the Secretary after considering all Department resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion.

(4) If an action required to comply with this section would result in that alteration or those burdens, the Department shall take any other action that would not result in the alteration or burdens but would nevertheless ensure that, to the maximum extent possible, individuals with handicaps receive the benefits and services of the program or activity. 8 105.41 Compliance procedures.

(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs and activities conducted by the Department.

(b) As provided in § 105.30, the Department shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).

(c) The Deputy Under Secretary for Management is responsible for coordinating implementation of this section. Complaints may be sent to the U.S. Department of Education, Office of Management, Federal Building No. 6, 400 Maryland Avenue SW., Washington, DC 20202.

(d) The Department shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The Department may extend this time period for good cause.

(e) If the Department receives a complaint over which it does not have jurisdiction, it shall promptly notify

the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.

(f) The Department shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157) is not readily accessible to and usable by individuals with handicaps.

(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the Department shall notify the complainant of the results of the investigation in a letter containing

(1) Findings of fact and conclusions of law;

(2) A description of a remedy for each violation found; and

(3) A notice of the right to appeal.

(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the Department of the letter required by § 105.41(g). The Department may extend this time for good cause.

(i) Timely appeals shall be accepted and processed by the Secretary.

(j) If the Secretary determines that additional information is needed for the complainant, he or she shall notify the complainant of the additional information needed to make his or her determination on the appeal.

(k) The Secretary shall notify the complainant of the results of the appeal.

(1) The time limit in paragraph (g) of this section may be extended by the Secretary.

(m) The Secretary may delegate the authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated.

8 105.42 Effective date.

The effective date of this part is October 9, 1990.

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Subpart C-Discrimination on the Basis of Sex

In Admission and Recruitment Prohibited

106.21 Admission.
106.22 Preference in admission.
106.23 Recruitment.

Subpart D-Discrimination on the Basis of Sex

in Education Programs and Activities Pro-

106.31 Education programs and activities.
106.32 Housing.
106.33 Comparable facilities.
106.34 Access to course offerings.
106.35 Access to schools operated by LEAs.
106.36 Counseling and use of appraisal and

counseling materials.
106.37 Financial assistance.
106.38 Employment assistance to students.
106.39 Health and insurance benefits and

106.40 Marital or parental status.
106.41 Athletics.
106.42 Textbooks and curricular material.

8 106.1 Purpose and effective date.

The purpose of this part is to effec-
tuate title IX of the Education
Amendments of 1972, as amended by
Pub. L. 93-568, 88 Stat. 1855 (except
sections 904 and 906 of those Amend.
ments) which is designed to eliminate
(with certain exceptions) discrimina-
tion on the basis of sex in any educa-
tion program or activity receiving Fed-
eral financial assistance, whether or
not such program or activity is offered
or sponsored by an educational institu-
tion as defined in this part. This part
is also intended to effectuate section
844 of the Education Amendments of
1974, Pub. L. 93-380, 88 Stat. 484. The
effective date of this part shall be July
21, 1975.
(Authority: Secs. 901, 902, Education
Amendments of 1972, 86 Stat. 373, 374; 20
U.S.C. 1681, 1682, as amended by Pub. L. 93-
568, 88 Stat. 1855, and sec. 844, Education
Amendments of 1974, 88 Stat. 484, Pub. L.

8 106.2 Definitions.

As used in this part, the term:

(a) Title IX means title IX of the Education Amendments of 1972, Pub. L. 92-318, as amended by section 3 of Pub. L. 93-568, 88 Stat. 1855, except sections 904 and 906 thereof; 20 U.S.C. 1681, 1682, 1683, 1685, 1686.

(b) Department means the Department of Education.

(c) Secretary means the Secretary of Education.

(d) Assistant Secretary means the Assistant Secretary for Civil Rights of the Department.

(e) Reviewing Authority means that component of the Department delegated authority by the Secretary to appoint, and to review the decisions of, administrative law judges in cases arising under this part.

(f) Administrative law judge means a person appointed by the reviewing authority to preside over a hearing held under this part.

(g) Federal financial assistance means any of the following, when authorized or extended under a law administered by the Department:

(1) A grant or loan of Federal financial assistance, including funds made available for:

(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and

(ii) Scholarships, loans, grants, wages or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.

(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.

(3) Provision of the services of Federal personnel.

(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipi. ent or in recognition of public interest to be served thereby, or permission to

use Federal property or any interest therein without consideration.

(5) Any other contract, agreement, or arrangement which has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.

(h) Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and which operates an education program or activity which receives or benefits from such assistance, including any subunit, successor, assignee, or transferee thereof.

(i) Applicant means one who submits an application, request, or plan required to be approved by a Department official, or by a recipient, as a condition to becoming a recipient.

(j) Educational institution means a local educational agency (LEA) as defined by section 1001(f) of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 3381), a preschool, a private elementary secondary school, or an applicant or recipient of the type defined by paragraph (k), (1), (m), or (n) of this section.

(k) Institution of graduate higher education means an institution which:

(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences; or

(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education professional education); or

(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.

(1) Institution of undergraduate higher education means:

(1) An institution offering at least two but less than four years of college



(Authority: Secs. 901, 902, Education Amendments of 1972, 86 Stat. 373, 374; 20 U.S.C. 1681, 1682) (45 FR 30955, May 9, 1980; 45 FR 37426, June 3, 1980)



level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward baccalaureate degree; or

(2) An institution offering academic study leading to baccalaureate degree; or

(3) An agency or body which certifies credentials or offers degrees, but which may or may not offer academic study.

(m) Institution of professional education means an institution (except any institution of undergraduate higher education) which offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary.

(n) Institution of vocational education means a school or institution (except an institution of professional or graduate or undergraduate higher education) which has as its primary purpose preparation of students to pursue a technical, skilled, or semiskilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers fulltime study.

(0) Administratively separate unit means a school, department or college of an educational institution (other than a local educational agency) admission to which is independent of admission to any other component of such institution.

(p) Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by a recipient.

(q) Student means a person who has gained admission.

(r) Transition plan means a plan subject to the approval of the Secretary pursuant to section 901(a)(2) of the Education Amendments of 1972, under which an educational institution operates in making the transition from being an educational institution which admits only students of one sex to being one which admits students of both sexes without discrimination.

8 106.3 Remedial and affirmative action

and self-evaluation. (a) Remedial action. If the Assistant Secretary finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the Assistant Secretary deems necessary to overcome the effects of such discrimination.

(b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action to overcome the effects of conditions which resulted in limited participation therein by persons of a particular sex. Nothing herein shall be interpreted to alter any affirmative action obligations which a recipient may have under Executive Order 11246.

(c) Self-evaluation. Each recipient education institution shall, within one year of the effective date of this part:

(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.

(d) Availability of self-evaluation and related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the Assistant Secretary upon request, a description of any modifications made pursuant to paragraph (c) (ii) of this

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