Rule: Civil Rights: Boy Scouts of America Equal Access Act Implementation

Friday,
March 24, 2006
Part II
Department of
Education
34 CFR Parts 75, 76 and 108
Equal Access to Public School Facilities
for the Boy Scouts of America and Other
Designated Youth Groups; Final Rule
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14994 Federal Register / Vol. 71, No. 57 / Friday, March 24, 2006 / Rules and Regulations
DEPARTMENT OF EDUCATION of America (Boy Scouts) or any other be on terms that are no less favorable
youth group listed in title 36 of the than the most favorable terms provided
34 CFR Parts 75, 76, and 108 United States Code (as a patriotic to one or more outside youth or
RIN 1870–AA12 society) (Title 36 youth group) that community groups.
wishes to conduct a meeting within the • Clarifying that public schools,
Equal Access to Public School covered entity’s designated open forum LEAs, and SEAs can charge fees for this
Facilities for the Boy Scouts of or limited public forum. access, but only on terms that are no
America and Other Designated Youth The Act authorizes the Secretary to less favorable than the most favorable
Groups implement this law by issuing and terms provided to one or more outside
securing compliance with rules or youth or community groups.
AGENCY: Office for Civil Rights, orders with respect to the Act’s • Noting that the Act does not require
Department of Education. requirements through OCR. The Act also any school, agency, or school served by
ACTION: Final regulations. directs the Secretary, through OCR, to an agency to which the Act applies to
enforce this law in a manner consistent sponsor any group officially affiliated
SUMMARY: The Secretary adds a new part with the procedure used under section with the Boy Scouts or any other Title
to title 34 of the Code of Federal 602 of the Civil Rights Act of 1964. If 36 youth group.
Regulations and amends 34 CFR parts a covered public elementary school, • Incorporating the procedural
75 and 76 to implement the provisions public secondary school, LEA, or SEA provisions applicable to title VI of the
of the Boy Scouts of America Equal does not comply with the Act or Civil Rights Act of 1964 (Title VI).
Access Act (Act). This Act directs the regulations issued by the Department, it • Amending 34 CFR 75.500 and
Secretary of Education, through the would be subject to the Department’s 76.500 to add the Act and the
Office for Civil Rights (OCR), to ensure enforcement actions. regulations in part 108 to the list of
compliance with this new law. The On October 19, 2004, the Secretary Federal statutes and regulations on
regulations address equal access to published a notice of proposed nondiscrimination with which grantees,
public school facilities by the Boy rulemaking (NPRM) for these under 34 CFR 75.500, and States and
Scouts of America and other designated regulations in the Federal Register (69 subgrantees, under 34 CFR 75.600, that
youth groups. FR 61556). In the preamble to the are covered entities must comply.
DATES: These regulations are effective NPRM, the Secretary discussed on pages The significant differences between
April 24, 2006. 61557 through 61559 the significant the NPRM and these final regulations
FOR FURTHER INFORMATION CONTACT: regulations proposed to implement the are as follows:
Sandra G. Battle, U.S. Department of Act. These included the following: • We have added definitions of
Education, 400 Maryland Avenue, SW., • Providing definitions for the ‘‘group officially affiliated with any
Room 6125, Potomac Center Plaza, following statutory terms: ‘‘designated other Title 36 youth group,’’ ‘‘group
Washington, DC 20202–1100. open forum,’’ ‘‘outside youth or officially affiliated with the Boy
Telephone: (202) 245–6767. community group,’’ ‘‘to sponsor any Scouts,’’ ‘‘premises or facilities,’’ and
If you use a telecommunications group officially affiliated with the Boy ‘‘Title 36 youth group’’ to § 108.3.
device for the deaf (TDD), you may call Scouts of America,’’ and ‘‘to sponsor • We have added language to § 108.5
1–877–521–2172. any group officially affiliated with any that a covered entity may require that
Individuals with disabilities may other youth group listed in title 36 of any group seeking equal access under
obtain this document in an alternative the United States Code (as a patriotic the Act inform the covered entity
format (e.g., Braille, large print, society).’’ whether the group is officially affiliated
audiotape, or computer diskette) on • Explaining that neither State nor with the Boy Scouts or with any other
request to the contact person listed local law obviates or alleviates the Title 36 youth group. We have also
under FOR FURTHER INFORMATION obligation to comply with the Act and added language that a covered entity’s
CONTACT.
its implementing regulations. failure to request this information is not
• Providing that the obligation of a defense to a covered entity’s
SUPPLEMENTARY INFORMATION: These public elementary schools, public noncompliance with the Act or its
regulations implement the Boy Scouts of secondary schools, LEAs, and SEAs to implementing regulations.
America Equal Access Act, 20 U.S.C. comply with the Act is not limited by • We have restructured and modified
7905. On January 8, 2002, the President the nature or extent of their authority to § 108.6 so that the section more clearly
signed into law the No Child Left make decisions about the use of school explains the circumstances and terms
Behind Act of 2001 (NCLB), Pub. L. facilities. under which access is required by the
107–110, amending the Elementary and • Clarifying that equal access under Act and its implementing regulations.
Secondary Education Act of 1965 the Act includes not only access to • We have added language to § 108.6
(ESEA). The Act is included in these school facilities for meetings before, regarding nondiscrimination under the
amendments to the ESEA and is found during, or after school, but also includes Act and its implementing regulations.
in section 9525 of the ESEA. The Act access to other activities related to an • We have deleted some language in
applies to any public elementary school, intention by any group officially proposed § 108.8, renumbered this
public secondary school, local affiliated with the Boy Scouts or any section as § 108.9, and added a new
educational agency (LEA), or State other Title 36 youth group to conduct a § 108.8 addressing assurances of
educational agency (SEA) that has a meeting within a covered entity’s compliance.
designated open forum or limited public designated open forum or limited public • We have added language to § 108.9
forum and that receives funds made forum. These other activities include, to address the scope of fund
available through the Department of but are not necessarily limited to, means termination.
Education (Department). Under the Act, of communication and recruitment.

these entities may not deny equal access • Explaining that in order to be equal, Analysis of Comments and Changes
or a fair opportunity to meet to, or the access provided to any group In response to the Secretary’s
discriminate against, any group officially affiliated with the Boy Scouts invitation in the NPRM, over 3,000
officially affiliated with the Boy Scouts or any other Title 36 youth group must parties submitted comments on the
Federal Register / Vol. 71, No. 57 / Friday, March 24, 2006 / Rules and Regulations 14995
proposed regulations. An analysis of the one or more outside youth or b. Group Officially Affiliated With Any
comments and of the changes in the community groups to meet on school Other Title 36 Youth Group; Group
regulations since publication of the premises or in school facilities, Officially Affiliated With the Boy Scouts
NPRM follows. including during the school day, for Comments: Two commenters stated
We discuss major substantive issues reasons other than to provide the that the regulations could be interpreted
under the sections of the regulations to school’s educational program. to mean that any groups officially
which they pertain. Generally, we do Under this definition, a school retains
affiliated with the Boy Scouts, including
not discuss comments that simply control over its educational program
churches, synagogues, and nonprofit
support the regulations, and we do not and does not create a designated open
forum simply by inviting an outside organizations, could use school
address technical and other minor facilities, and have access to other
changes—or suggested changes the law group to the school to present
information to the students. For school-related means of communication
does not authorize the Secretary to and student information, for purposes
make. instance, if a school, as part of its
character education program, invites an that have nothing to do with the Boy
Section 108.3 Definitions outside group to speak to the student Scouts or other Title 36 youth groups.
body on saying no to drugs, that does Discussion: The Act provides equal
a. Designated Open Forum access to school premises or facilities
not mean that the school has created a
Comments: One commenter expressed designated open forum and must allow for any group officially affiliated with
the concern that, under the definition, a any group officially affiliated with the the Boy Scouts or with any other Title
public school would be required to Boy Scouts or with any other Title 36 36 youth group. The focus is equal
allow the Boy Scouts, but not other youth group to come to the school to access for the Boy Scouts or other Title
youth or community groups, to meet on conduct a presentation related to 36 youth groups, rather than equal
school premises during the school day character education or to conduct access, for any reason, for any
if the school allowed a single outside meetings with students during school organization or group that has any
youth or community group to meet on hours. Similarly, if the parent teacher official affiliation with the Boy Scouts
school premises or in school facilities association (PTA) of a particular school or with a Title 36 youth group. Thus,
during school hours, such as the Red is an outside group not affiliated with the Act does not provide equal access to
Cross for a school blood drive. The the school, and the school, as part of its an organization that sponsors a Boy
commenter stated the definition would educational program, invites the PTA to Scout troop, but rather provides equal
create a far greater right of access during speak to students about career access to the Boy Scout troop sponsored
the school day for the Boy Scouts and opportunities, that does not mean that by that organization. The Act covers the
certain other groups, based on their the school has created a designated youth groups that are formed as a result
viewpoint, than would be available to open forum and must allow any group of the community organization
other youth or community groups. officially affiliated with the Boy Scouts chartering process for the Boy Scouts or
Another commenter believed the or with any other Title 36 youth group similar chartering or other process for
definition would be a valuable tool in to come to the school to conduct a other Title 36 youth groups.
interpreting the Act because the presentation related to career Changes: We have provided
definition made clear that if a school opportunities or conduct meetings with definitions for group officially affiliated
allows outside groups to use school students during school hours. In both of with any other Title 36 youth group in
facilities at any time, even during school these examples, the schools have not § 108.3(g) and group officially affiliated
hours, it may not prevent the Boy created designated open forums, and with the Boy Scouts in § 108.3(h).
Scouts from using the facilities on the therefore the Act does not apply.
same terms. c. Limited Public Forum
The language pertaining to equal
One commenter stated the definition access, in section (b)(1) of the Act Comments: A commenter stated that
should include literature distribution by (section 9525(b)(1) of the ESEA, as the definition of limited public forum
youth groups, such as the dissemination amended by NCLB), makes clear that the should include literature distribution by
of recruitment materials, even if no protections of the Act are triggered by a youth groups, such as the dissemination
meeting occurs with representatives of request to hold a meeting within a of recruitment materials, even if no
those groups, believing that this would covered entity’s designated open forum meeting occurs with representatives of
be consistent with the requirement of or limited public forum by any group those groups, believing that this
proposed § 108.6(b) pertaining to equal officially affiliated with the Boy Scouts addition would be consistent with the
access to means of communication. or with any other Title 36 youth group. requirement in proposed § 108.6(b)
Discussion: The definition of Therefore, a designated open forum or pertaining to equal access to means of
designated open forum is consistent limited public forum must be a forum in communication.
with the Act’s definition of limited which groups can meet. A forum Discussion: The statute defines when
public forum, which states that a consisting solely of literature a limited public forum exists, and the
limited public forum exists whenever distribution does not satisfy this definition in § 108.3 for limited public
the school involved grants an requirement and, thus, cannot be a forum simply incorporates that statutory
opportunity for one or more outside designated open forum. definition.
youth or community groups to meet on The proposed definition for Changes: None.
school premises or in school facilities designated open forum included the
before or after school. The definition in d. Outside Youth or Community Group
phrase ‘‘the school’s educational
§ 108.3 of a designated open forum benefits or services,’’ which is not as Comments: One commenter argued
retains the statutory focus on access precise as the phrase ‘‘the school’s that the definition of outside youth or
provided to one or more outside youth educational program.’’ community group creates a loophole, in
or community groups for meetings, and Changes: We have revised the that an LEA could claim that particular
clarifies that, in the context of the Act, language in the definition of designated youth groups are affiliated with the LEA
such a forum exists whenever the school open forum to incorporate the phrase and are, thus, entitled to access, such as
involved designates a time and place for ‘‘the school’s educational program.’’ recruiting access, denied to the Boy
Scouts. The commenter proposed a new Changes: None. youth group. However, several examples
definition that focuses on whether the of current Title 36 youth groups are the
e. Premises or Facilities
youth or community group provides Big Brothers—Big Sisters of America (36
extracurricular activities for students Comments: None. U.S.C. 30101), the Boys & Girls Clubs of
outside of school hours. Another Discussion: For clarification, we have America (36 U.S.C. 31101), the Girl
commenter requested clarification that, provided a definition of the term Scouts of the U.S.A. (36 U.S.C. 80301),
under the definition, groups whose premises or facilities. This definition and Little League Baseball, Inc. (36
members are only students or faculty of makes clear that the term applies to U.S.C. 130501).
a particular school, but lack formal more than just buildings and would, for Changes: We have added a definition
affiliation with the school, would not be instance, as applied to schools, cover of the term Title 36 youth group in
considered outside youth or community school grounds. § 108.3(p).
groups. Changes: We have provided a new
definition of the term premises or g. To Sponsor Any Group Officially
Discussion: The determination of
facilities in § 108.3(l). Affiliated With the Boy Scouts or With
whether a youth or community group is
Any Other Title 36 Youth Group
an outside youth or community group f. Title 36 of the United States Code (as
should not be made based solely on Comments: The Boy Scouts stated that
a Patriotic Society); Title 36 Youth
whether the group provides the definitions of sponsorship are
Group
extracurricular activities for students sufficient to implement the
outside of school hours. Using the Comments: Several commenters requirements of the Act and that no
provision of extracurricular activities for sought clarification regarding the other changes are necessary to these
students as the standard to determine youth groups covered by the Act. Some definitions.
‘‘outside’’ status might narrow the commenters asked about the meaning of Discussion: In the NPRM we
circumstances under which a limited the phrase ‘‘other patriotic youth specifically requested comment on these
public forum or designated open forum groups.’’ Other commenters asked about definitions. The Boy Scouts found the
exists, since the standard proposed by the process by which a group becomes definition of sponsorship of any group
the commenter would not include recognized as a patriotic group and officially affiliated with the Boy Scouts
community groups serving adults that asked whether any group could receive to be sufficient to implement the
meet at a school, such as adult sports this designation. requirements of the Act, and no
leagues. Since these adult community Discussion: The statute uses the commenters proposed other definitions.
groups might not provide phrase ‘‘any group officially affiliated Similarly, no commenters objected to, or
extracurricular activities for students, with the Boy Scouts, or any other youth proposed other definitions for,
these groups might not be considered group listed in title 36 of the United sponsorship of any group officially
‘‘outside’’ groups. Applying the States Code (as a patriotic society).’’ We affiliated with any other Title 36 youth
commenter’s suggested standard, a read this phrase to mean any group group.
school could allow these adult officially affiliated with the Boy Scouts Changes: None.
community groups to meet at the school or any group officially affiliated with
any other youth group listed in title 36 Section 108.4 Effect of State or Local
without creating a limited public forum Law
or designated open forum. This result of the United States Code (as a patriotic
would not be consistent with the Act. society). The regulations define ‘‘title 36 Comments: Conflict with State or
Furthermore, groups that consist only of the United States Code (as a patriotic local laws. Several commenters
of students or faculty of a particular society)’’ to mean Subtitle II (Patriotic expressed concern that the Act creates
school might be considered ‘‘outside’’ and National Organizations) of title 36 a conflict with State or local anti-
groups, depending on the (Subtitle II). Congress charters the discrimination laws. The commenters
circumstances. For example, if a faculty groups that are listed in Subtitle II. believed that school officials at the local
member, on his or her own time, leads Subtitle II does not indicate which of level should not be compelled to violate
a Boy Scout troop whose membership is the listed organizations are youth these State or local laws in order to
made up entirely of students from the groups. Thus, it is necessary to apply provide the Boy Scouts with access to
faculty member’s school, the Boy Scout the Act’s definition of youth group— public schools. These commenters
troop could still be considered an ‘‘any group or organization intended to believed that, in jurisdictions with these
outside group. serve young people under the age of anti-discrimination laws, school
If a school or LEA chooses to affiliate 21’’—to determine which of the officials should have the autonomy to
itself with a youth or community group, organizations listed under Subtitle II are make decisions about the use of public
the youth or community group is not youth groups covered by the Act. school facilities without interference
considered an outside group, even if it Relevant factors to analyze in making from the Federal Government.
is a Title 36 youth group. For instance, this determination include, but are not Two of these commenters expressed
if a school chooses to sponsor a Boy necessarily limited to, the purpose or concern that, because of this conflict
Scout troop, the Boy Scout troop is not purposes of the organization as defined between the Act and State or local laws,
considered an outside group. in the applicable chapter of Title 36 of many schools, to the detriment of school
The determination of whether any the United States Code, Subtitle II, Part children, would decide to ban all
particular group, such as a school’s B, and the functional purpose or extracurricular groups, either to avoid
PTA, is an outside youth or community purposes of the organization as defined litigation or to avoid violating the Act
group must be made on a case-by-case by its mission statement or other and risking the loss of Federal funds.
basis, depending on the circumstances principles of operation. One of these commenters questioned—
in each school or LEA and must be Given that Congress can change (1) how school districts could structure
made in a manner that would not which groups are listed in Title 36 and their access plans and legally comply
violate the nondiscrimination given that the stated purposes of any with the Act, Federal laws against
requirements of the Act, in section group may change over time, it is not religious discrimination, and State or
(b)(1), and the regulations in possible to identify and provide a local laws banning sexual orientation
§ 108.6(b)(5). comprehensive list of every Title 36 discrimination; (2) whether the Act
would protect a school system from the Act would protect public school comply with a public school’s code of
being sued for discrimination under districts from being sued for student conduct in the same manner as
local or State law if a gay student discrimination under State or local law, all other students subject to those
seeking to join a Boy Scout troop at his or how public school districts could policies, and members of groups using
school was refused entry; and (3) how protect themselves from lawsuits from school premises or facilities must
school districts could avoid being sued groups not covered by the Act. School comply with a public school’s rules
by groups that exclude students of a districts should consult their attorneys pertaining to the conduct of members of
particular race, religion, etc., but seek if these situations arise. groups using school premises or
access to the public schools, since the Changes: None. facilities in the same manner as all
Boy Scouts and other title 36 patriotic Comments: Laws protecting rights of others subject to the school’s policies.
groups are allowed (in the commenter’s gay student groups. More than half of Of course, compliance with these
opinion) to avoid compliance with civil the commenters stated that gay-straight student conduct codes or other rules of
rights laws mandating equal access by alliances and other support groups for conduct would not be required if they
individuals to publicly supported gay, lesbian, bisexual, and transgender conflict with the Act.
groups. The other commenter expressed students and students questioning their Changes: None.
concern that compelling schools to sexual orientation have a legal right to
meet in public schools. Most of these Section 108.5 Compliance Obligations
violate anti-discrimination laws in order
to give the Boy Scouts access to school commenters noted that gay students Comments: Three commenters
facilities does not set a good example for suffer harassment and discrimination at expressed concerns about holding local
American schoolchildren. school and asked that the final school districts responsible for
One commenter, in reference to the regulations include gay student groups. complying with the Act in situations in
Boy Scouts’ ineligibility to participate in Discussion: The Department does not which school districts have no authority
a State’s charitable campaign due to the condone harassment of students on any over decisions concerning public use of
Boy Scouts’ inability to sign off on the basis in the public schools. However, school facilities. One of these
campaign’s nondiscrimination policy, the Act specifically covers any group commenters explained that the
questioned whether there would be officially affiliated with the Boy Scouts authority of local school districts over
coordination between Federal and State or with any other Title 36 youth group. the use of facilities varies among States,
statutes on this issue. It would exceed the scope of the and among local communities, spanning
One commenter stated that school statutory language if the regulations the spectrum from local school boards
buildings are maintained primarily by implementing the statute afforded that have sole authority to local school
local, city, and State taxes, and thus coverage to groups not identified in the boards that have no authority. This
local communities should not be forced statute. commenter believed the regulations
to give unequal and preferential Of course, the Act does not prohibit could result in costly litigation for
treatment to discriminatory schools, LEAs, and SEAs from providing LEAs, in addition to the potential loss
organizations like the Boy Scouts. equal access to all groups, including of Federal funds, because the
Another commenter expressed concern those not covered by the Act. The Act regulations create an unworkable
that the Act’s requirements add to an simply requires that these schools and situation for public schools that have no
already overwhelming bureaucracy, agencies provide equal access to any authority over the public use of school
explaining that an equal access group officially affiliated with the Boy facilities. This commenter
requirement that public schools treat all Scouts or with any other Title 36 youth recommended that the regulations be
groups equally already exists in the group. revised to specify that if local school
commenter’s State. Changes: None. districts do not have authority over the
Discussion: Section 108.4 reflects the Comments: Interaction with school public use of school facilities, the
statutory mandate in section (c)(2) of the rules. One commenter questioned responsibility for complying with the
Act that covered entities must comply whether student members of the Boy Act shifts to the responsible agency,
with the equal access and Scouts would be exempt from bullying with the responsible agency assuming
nondiscrimination requirements and nondiscrimination rules within the any liability associated with the failure
notwithstanding any other provision of school. to comply with the Act.
law. This includes State or local law. Discussion: Neither the Act nor the The second commenter recommended
Therefore, covered entities must comply implementing regulations affect the that, if the intent of the regulations is to
with the Act even if State or local law obligation of student members of the prevent schools from transferring the
conflicts with the Act. Boy Scouts to comply with a public authority to determine use of school
The Act exercises a proper Federal school’s code of student conduct. facilities to an outside entity not
role by ensuring that public schools Further, neither the Act nor the regulated by the Act, then the
receiving funds made available through implementing regulations affect the regulations should include language
the Department do not exclude the Boy obligation of members of the Boy Scouts preventing schools from doing so. This
Scouts for exercising their freedom of to comply with a public school’s rules commenter also believed these
association to set their own leadership pertaining to the conduct of members of regulations raised questions about the
criteria, as found by the Supreme Court groups using school premises or confusion that would occur if an outside
in Boy Scouts of America v. Dale, 530 facilities. For example, if a school’s organization had the authority to grant
U.S. 640, 120 S. Ct. 2446 (2000). rules of conduct prohibit group access to school premises or facilities
Congress passed the Act to address the members from possessing weapons, while the school itself had the authority
situation that the Boy Scouts, because of such as knives, on or in school premises to grant access to student information or
their membership or leadership criteria, or facilities, the school would not be means of communication.
had been barred from access to some required by the Act to permit members The third commenter recommended
public schools while other youth or of a Boy Scout troop to bring knives to that the regulations be revised to state
community groups were granted access. troop meetings held on or in school that the obligation of public schools to
It is beyond the scope of the authority premises or facilities. Thus, student comply with the Act is limited by the
of the Department to determine whether members of the Boy Scouts must nature or extent of their authority to
make decisions about use of school Section 108.6 Equal Access entitled under the Act to access to any
facilities. Comments: Conflict with Title VI. One other benefits and services, such as a
Discussion: The Secretary recognizes commenter stated that the regulations school’s bulletin board.
that public schools, LEAs, or SEAs may Changes: We have restructured
should be modified to clarify that the
not always have the independent § 108.6 so that the section more clearly
regulations do not limit, in any way, the
authority to make decisions concerning explains the circumstances under which
applicability of section 601 of Title VI,
the use of school premises or facilities, access is required under the Act.
which prohibits discrimination on the
and that other entities may be
basis of race, color, or national origin. Section 108.6(b)(2) Equal Access:
responsible for making those decisions.
The commenter believed that, because Benefits and Services
The statute, however, holds public
the leadership or membership criteria of Comments: Benefits and services
schools, LEAs, and SEAs responsible for
a group covered by the Act could be covered. Some commenters questioned
compliance with the Act and does not
discriminatory on the basis of race, what activities are covered by the Act.
condition their compliance obligation
on whether they have the authority to color, or national origin, and because One commenter requested that the term
make decisions about the use of their the regulations do not explicitly contain ‘‘school activities’’ be stricken from the
school premises or facilities. Section such a limitation, it appears the regulations because the commenter
108.5(a) clarifies that the statute applies regulations are attempting to trump found the term confusing and not
to covered public elementary schools, Title VI. defined.
public secondary schools, LEAs, and Discussion: Section 601 of Title VI has Discussion: The range of benefits and
SEAs regardless of their authority to not been amended or superseded in any services covered by the Act is
make decisions about the use of school way by the Act or these regulations. determined by what a covered entity
premises or facilities. Changes: None. provides to one or more outside youth
We recognize that the Act imposes Comments: Circumstances under or community groups that have access
new obligations on covered entities. To which access is required. A few to meet in the covered entity’s
satisfy these obligations, covered commenters questioned when groups designated open forum or limited public
entities must know if a group seeking covered by the Act must be permitted to forum. Whatever those benefits and
access is a group that is officially have access, asking under what services are, the covered entity must
affiliated with the Boy Scouts or with circumstances a covered entity could provide access to all of those benefits
any other Title 36 youth group. While deny access to these groups. Two and services to any group officially
it might not be difficult to ascertain that commenters questioned what types of affiliated with the Boy Scouts or with
a particular Boy Scout troop seeking groups a school district could permit to any other Title 36 youth group that
access is a group that is officially have access to its facilities without also requests to conduct a meeting in that
affiliated with the Boy Scouts, it might having to permit the Boy Scouts to have same forum. As further discussed under
be more difficult to ascertain that the same access. the heading § 108.6(b)(4) Equal Access:
another group seeking access is Discussion: Section 108.6(a) restates Terms, this access must be on terms that
officially affiliated with a Title 36 youth the statutory requirement that no are no less favorable than the most
group. covered entity shall deny equal access favorable terms provided to one or more
Accordingly, covered entities may or a fair opportunity to meet to, or outside youth or community groups.
require that any group seeking equal discriminate against, any group Thus, if another outside youth or
access inform the covered entity officially affiliated with the Boy Scouts community group that is allowed to
whether the group is officially affiliated or with any other Title 36 youth group meet in the covered entity’s designated
with the Boy Scouts or is officially that requests to conduct a meeting open forum is permitted to send home
affiliated with any other Title 36 youth within the covered entity’s designated with students informational materials,
group. A covered entity would take this open forum or limited public forum. then the covered entity must allow
action at the time of the group’s request Thus, if a covered entity has a groups officially affiliated with the Boy
for access. Of course, there would be no designated open forum or limited public Scouts or with any other Title 36 youth
need for a covered entity to take this forum, then it must allow any group group that request to meet in that same
action if that covered entity already officially affiliated with the Boy Scouts designated open forum to send home
knew that a group seeking equal access or with any other Title 36 youth group informational materials. If, however, the
is officially affiliated with the Boy to meet in that designated open forum covered entity does not permit any
Scouts or is officially affiliated with any or limited public forum. As further outside youth or community groups that
other Title 36 youth group. discussed under the heading are allowed to meet in the covered
Additionally, a covered entity’s failure § 108.6(b)(4) Equal Access: Terms, this entity’s designated open forum to send
to request this information is not a access must be on terms that are no less home informational literature, then the
defense to a covered entity’s favorable than the most favorable terms covered entity does not have to permit
noncompliance with the Act or the provided to one or more outside youth groups officially affiliated with the Boy
regulations. or community groups. Of course, if a Scouts or with any other Title 36 youth
Changes: We have revised § 108.5 by school district does not have a group that request to meet in that
adding language that a covered entity designated open forum or limited public designated open forum to send home
may require that any group seeking forum, the Act would not apply. informational literature.
equal access under the Act inform the We recognize that the proposed The NPRM preamble used the term
covered entity whether the group is regulations might not have made clear ‘‘school activities’’ in reference to
officially affiliated with the Boy Scouts that in order to obtain access under the § 108.6, and the proposed regulations
or with any other Title 36 youth group Act, a group must first request to used the term ‘‘activities.’’ We agree that
and by adding language that a covered conduct a meeting in the covered we need to avoid confusion.
entity’s failure to request this entity’s designated open forum or Changes: We have added language to
information is not a defense to a covered limited public forum. If that group does clarify the circumstances under which
entity’s noncompliance with the Act or not request to meet in the covered equal access to benefits and services is
the regulations. entity’s forum, then that group is not required, and we have replaced the term
‘‘activities’’ with the term ‘‘benefits and among the class of speakers to which Boy Scouts or with any other Title 36
services.’’ the literature distribution forum was (in youth group can only send home with
Comments: Classroom instruction and the commenter’s opinion) lawfully students notices about the meetings.
school assemblies. A few commenters limited. This commenter further However, if the covered entity allows
questioned whether the Act covers questioned whether, if a school district one or more outside youth or
classroom instruction. One of these could not lawfully exclude the Boy community groups that are allowed to
commenters was opposed to allowing Scouts from such a forum, the school meet in the same forum to send home
the Boy Scouts the opportunity to meet district would then be required to other types of literature, such as
during classroom instructional time. permit access to other community informational packets and recruitment
Another commenter stated that the groups speaking on the same subject materials, then the school must allow
regulations should specify the Boy matter as the Boy Scouts even if those groups officially affiliated with the Boy
Scouts’ right to go into classrooms and other groups were not among the class Scouts or with any other Title 36 youth
participate in school assemblies so that of speakers to which the literature group to send home these other types of
they can speak to students about distribution forum was (in the literature.
scouting. commenter’s opinion) lawfully limited. Changes: None.
Discussion: The Act does not require Another commenter stated that the Comments: Recruitment issues related
access, but rather equal access. Thus, if final regulations should clarify that to access to student information. One
one or more outside youth or access to means of communication is commenter recommended that the
community groups that are allowed to limited to communicating information access required by the regulations
meet in a covered entity’s designated about the meetings themselves. incorporate the provisions from NCLB
open forum or limited public forum are Discussion: If a school decides that no pertaining to access for armed forces
given access to a benefit or service, then outside youth or community groups that recruitment and for recruitment
any group covered by the Act that are allowed to meet in the school’s purposes by institutions of higher
requests to meet in that same forum designated open forum or limited public education.
must be given access to that benefit or forum may distribute literature, such as Discussion: Access for recruitment
service. As further discussed under the informational packets and recruitment under the Act is not the same as NCLB’s
heading § 108.6(b)(4) Equal Access: materials, the Act does not require that access for armed services recruitment
Terms, this access must be on terms that the school make an exception for any and recruitment by institutions of
are no less favorable than the most group covered by the Act. If, however, higher education, provided under
favorable terms provided to one or more a school permits one or more outside section 9528 of the ESEA, as amended
outside youth or community groups. youth or community groups that are by NCLB.
However, if a covered entity decides to allowed to meet in the school’s Changes: None.
deny access to a particular benefit or designated open forum or limited public Comments: Fundraising. Another
service to all outside youth or forum to distribute literature, such as commenter believed the regulations
community groups that have access to informational packets and recruitment overlooked fundraising, stating that it
meet in that designated open forum or materials, then the school must provide was not clear from the regulations
limited public forum, that decision groups covered by the Act that request whether the Boy Scouts would be
would not violate the Act. For instance, to hold meetings in the same forum with allowed to fundraise on school premises
if a school decides that no outside youth the opportunity to distribute literature, on terms no less favorable than the most
or community groups that have access such as informational packets and favorable terms afforded to other
to meet in the covered entity’s recruitment materials. As further community groups, such as the Girl
designated open forum or limited public discussed under the heading Scouts. The commenter believed that, if
forum may hold recruitment assemblies § 108.6(b)(4) Equal Access: Terms, this the Girl Scouts are permitted to
during school hours so that school access must be on terms that are no less fundraise by posting fliers about cookie
hours can be devoted to instruction, the favorable than the most favorable terms sales and by conducting sales on
Act does not require that school to make provided to one or more outside youth campus, then the Boy Scouts should be
an exception for any group covered by or community groups. accorded the same rights.
the Act. Whether the covered entity must Discussion: Although fundraising is
Changes: None. permit groups not covered by the Act to not listed as a specific benefit or service,
Comments: Literature distribution and have access in order to distribute if a covered entity allows one or more
other means of communication. One literature is beyond the scope of the Act outside youth or community groups to
commenter stated that the regulations and these regulations. meet in the covered entity’s designated
should specify the Boy Scouts’ right to Any group officially affiliated with open forum or limited public forum to
distribute informational flyers about the Boy Scouts or with any other Title engage in fundraising, such as by
scouting. Another commenter objected 36 youth group must request to meet in posting notices on school bulletin
to the fact that the regulations failed to the school’s limited public forum or boards and selling items on campus,
define access as including the right of designated open forum in order to have then the school must provide groups
the Boy Scouts and similar access to means of communication. covered by the Act that request to hold
organizations to distribute literature, However, this access to means of meetings in the same forum with an
including recruitment material, to communication is not necessarily equal opportunity to engage in
students at schools. limited to communicating information fundraising, such as by posting notices
Another commenter believed a school about the meetings themselves. It on school bulletin boards and selling
district could lawfully limit access to a depends on what the covered entity items on campus. As further discussed
forum based on subject matter or provides to one or more outside youth under the heading § 108.6(b)(4) Equal
speaker identity and questioned or community groups that are allowed Access: Terms, this access must be on
whether, under the regulations, a school to meet in that same forum. If the terms that are no less favorable than the
district could lawfully exclude the Boy covered entity allows only notices about most favorable terms provided to one or
Scouts from a school district’s literature meetings to be sent home with students, more outside youth or community
distribution forum if they were not then groups officially affiliated with the groups.
Changes: None. necessarily limited to, meetings entities have an obligation to provide
(§ 108.6(b)(1)), benefits and services assurances of compliance with the Act.
Section 108.6(b)(3) Equal Access: Fees
(§ 108.6(b)(2)), and any fees charged for We also recognize that some
Comments: One commenter expressed this access (§ 108.6(b)(3)). requirements of the Title VI assurances
concern about the costs public schools Changes: We have added a new provision in 34 CFR 100.4 are not
incur due to property damage and theft paragraph § 108.6(b)(4), regarding the applicable to the Act. A separate
that results if they are forced to allow terms under which access must be regulatory section on assurances would
groups to use their buildings. The provided under the Act and these more effectively put schools, LEAs, and
commenter questioned whether schools regulations. SEAs on notice of their obligation to
could require these groups to pay a provide these assurances of compliance.
rental fee. Another commenter believed Section 108.6(b)(5) Equal Access: Changes: We renumbered proposed
groups covered by the Act should not Nondiscrimination § 108.8 as § 108.9 and added a new
only have equal access to schools, but Comments: None. § 108.8 that specifically addresses
should be able to use the facilities free Discussion: The proposed regulations assurances of compliance with the Act.
of charge. Another commenter was may not have made clear that, We also revised renumbered § 108.9 by
concerned that many Boy Scout troops consistent with the requirements in removing the reference to 34 CFR 100.4,
cannot afford to pay the fees charged to section (b)(1) of the Act, decisions which is the Title VI assurances
access public school facilities and thus relevant to the provision of equal access provision.
are denied access to the facilities must be made on a nondiscriminatory
Section 108.9 Procedures
because of their inability to pay these basis. Any determinations of which
fees. youth or community groups are outside Comments: One commenter suggested
Discussion: Whether any group groups must be made using objective, that the regulations contain an informal
covered by the Act can be charged fees nondiscriminatory criteria, and these complaint process that would not
in connection with access, including, criteria must be used in a consistent, require immediate recourse to the
but not necessarily limited to, equal, and nondiscriminatory manner. courts. This commenter also suggested
conducting meetings on or in school Change: We have added a new that the burden of showing compliance
premises or facilities, using school- paragraph § 108.6(b)(5), regarding should be on the school, rather than
related means of communication, or nondiscrimination under the Act and placing the burden of showing
conducting recruitment activities, these regulations. noncompliance on the individual
depends on whether fees are charged to Cubmaster or den leader, given the
other outside youth or community Section 108.7 Voluntary Sponsorship mismatch in resources between a school
groups that are allowed to meet in the Comments: Two commenters noted (or school district) and an individual
same designated open forum or limited the distinction between a public school Scouter (or Pack). Another commenter
public forum. If a covered entity charges sponsoring a Boy Scout troop and a suggested that the regulations provide
fees to other outside youth or public school providing equal access to that local school districts have the
community groups, then it may charge a privately sponsored Boy Scout troop. option to provide their own
fees to any group covered by the Act. Two commenters suggested that public administrative process for review and
However, as more fully explained under schools cannot lawfully sponsor Boy appeal of access decisions and that this
the heading § 108.6(b)(4) Equal Access: Scout troops, given the Boy Scouts’ process must be exhausted prior to
Terms, these fees must be charged on leadership and membership policies. filing complaints with OCR. This same
terms that are no less favorable than the Discussion: The Act does not address commenter suggested that the
most favorable terms provided to one or the legality of school sponsorship of Boy regulations clarify that the law does not
more outside youth or community Scout troops. The Act simply provides provide a private cause of action.
groups. that nothing in the law should be Another commenter asked, if an atheist
Changes: None. construed to require any school, agency, student is barred from access to a
or school served by an agency to school’s Boy Scout troop and sues under
Section 108.6(b)(4) Equal Access: Federal law, how would OCR
sponsor any group officially affiliated
Terms simultaneously defend this student’s
with the Boy Scouts or with any other
Comments: None. Title 36 youth group. legal rights and those of the Boy Scout
Discussion: Any determinations of Changes: None. troop and/or the school?
which youth or community groups are Discussion: The Act directs the
outside youth or community groups Section 108.8 Assurances Secretary, through OCR, to enforce the
must be made on a case-by-case basis, Comments: None. law in a manner consistent with the
depending on the circumstances in each Discussion: The Act directs the procedure used under section 602 of the
school or LEA and must be made in a Secretary, through OCR, to enforce the Civil Rights Act of 1964. That
manner that would not violate the law in a manner consistent with the enforcement process, which in its
nondiscrimination requirements of the procedure used under section 602 of the entirety includes fund termination, is
Act, in section (b)(1), and the Civil Rights Act of 1964. That described in the procedural provisions
regulations, in § 108.6(b)(5). enforcement process includes obtaining applicable to Title VI in 34 CFR parts
Proposed § 108.6 repeated the equal assurances from applicants for Federal 100 and 101. We indicated in proposed
access standard four times. This financial assistance that they will § 108.8 that these procedural provisions
repetitive format is somewhat comply with Title VI. This requirement in part 100 and part 101 also would
cumbersome. We have decided to state is in the Title VI regulations in 34 CFR apply to compliance under the Act.
the standard for equal access one time 100.4. In the proposed regulations in Under the Title VI enforcement
and to clarify that this standard applies § 108.8, we proposed to incorporate by process, any person may file a
to any access provided under these reference this Title VI assurances complaint with OCR alleging a violation
regulations and to any fees charged for provision. of the relevant law. In an OCR
this access. Thus, the standard applies We recognize that proposed § 108.8 complaint investigation OCR does not
to all forms of access, including, but not might not have made clear that covered represent either the individual who
filed the complaint or the entity against Executive Order 12250 the substantive obligations of covered
which the complaint was filed. Pursuant to Executive Order 12250, entities.
We decline to create another informal which provides for the coordination of Executive Order 13132
complaint process and do not think it various laws prohibiting discriminatory
appropriate to restrict OCR’s Executive Order 13132 requires us to
practices in Federal programs and ensure meaningful and timely input by
enforcement of the Act by requiring programs receiving Federal financial
exhaustion of a process at the school State and local elected officials in the
assistance, the Assistant Attorney development of regulatory policies that
district level before OCR accepts General for Civil Rights has reviewed
complaints alleging violations of the have federalism implications.
and approved these final regulations. ‘‘Federalism implications’’ means
Act. Furthermore, it is beyond the
Secretary’s authority to determine Executive Order 12866 substantial direct effects on the States,
whether or not there is a private cause on the relationship between the
We have reviewed these final
of action under the Act. National Government and the States, or
regulations in accordance with
We recognize that the proposed on the distribution of power and
Executive Order 12866. We have
regulations did not clearly address the responsibilities among the various
determined this to be a ‘‘significant’’
scope of fund termination. One of the levels of government. We reviewed and
regulatory action within the meaning of
Title VI regulatory procedural considered comments that addressed
Executive Order 12866 and thus the
provisions referenced in proposed federalism issues.
Office of Management and Budget
§ 108.8 was 34 CFR 100.8(c), which (OMB) has reviewed these final Paperwork Reduction Act of 1995
addresses termination of or refusal to regulations. Under the terms of the
grant or to continue Federal financial The Paperwork Reduction Act of 1995
order we have assessed the potential does not require you to respond to a
assistance. Among other things, costs and benefits of this regulatory
§ 100.8(c) limits the termination or collection of information unless it
action. displays a valid OMB control number.
refusal to grant or continue Federal In assessing the potential costs and
financial assistance ‘‘to the particular We display the valid OMB control
benefits—both quantitative and number assigned to the collection of
political entity, or part thereof, or other qualitative—of these final regulations,
applicant or recipient as to whom such information in these final regulations at
we have determined that the benefits of the end of the affected section of the
a finding has been made and shall be the regulations justify the costs.
limited in its effect to the particular regulations (§ 108.8).
We have also determined that this
program, or part thereof, in which such regulatory action does not unduly Electronic Access to This Document
noncompliance has been so found.’’ interfere with State, local, and tribal You may view this document, as well
This limitation, however, is inconsistent governments in the exercise of their as all other Department of Education
with language in the Act which states governmental functions. documents published in the Federal
that, notwithstanding any other Register, in text or Adobe Portable
provision of law, no funds made Summary of Potential Costs and
Benefits Document Format (PDF) on the Internet
available through the Department shall at the following site: http://www.ed.gov/
be provided to any school, agency, or The potential costs associated with news/fedregister.
school served by an agency that fails to the final regulations are those resulting To use PDF you must have Adobe
comply with the Act. The language in from statutory requirements and those Acrobat Reader, which is available free
34 CFR 100.8(c) regarding limitations on we have determined to be necessary for at this site. If you have questions about
the termination of Federal financial administering this program effectively using PDF, call the U.S. Government
assistance does not apply to and efficiently. The final regulations do Printing Office (GPO), toll free, at 1–
enforcement of the Act. not impose any specified costs. If 888–293–6498; or in the Washington,
As discussed previously, we also recipients have to change their practices DC, area at (202) 512–1530.
recognize that the language in proposed in order to meet the equal access and
§ 108.8 referencing the Title VI nondiscrimination requirements of the Note: The official version of this document
assurances provision in 34 CFR 100.4 statute, they may incur some costs. Any is the document published in the Federal
might not have made clear that covered costs, including costs to comply with Register. Free Internet access to the official
edition of the Federal Register and the Code
entities have an obligation to provide information collection requirements, of Federal Regulations is available on GPO
assurances of compliance with the Act, likely would be minimal. The potential Access at: http://www.gpoaccess.gov/nara/
and we recognize that some benefits of these final regulations are index.html.
requirements of the Title VI assurances that stakeholders have easily accessible,
provision in 34 CFR 100.4 are not codified, published regulations that (Catalog of Federal Domestic Assistance
applicable to the Act. clarify both the substantive obligations Number does not apply.)
Changes: We have renumbered of the law and how the Department will List of Subjects
proposed § 108.8 as § 108.9. We have enforce the law. By engaging in
added language to § 108.9 to clarify that, rulemaking, we were able to obtain 34 CFR Part 75
notwithstanding any other provision of input from stakeholders and other Accounting, Administrative practice
law, including § 100.8(c), no funds interested parties that helped us and procedure, Education, Grant
made available through the Department develop clear and accessible programs—education, Private schools,
shall be provided to any school, agency, regulations. By developing final Reporting and recordkeeping
or school served by an agency that fails regulations for use in enforcing the Act, requirements.
to comply with the Act or this part. We we complied with the directive in the
34 CFR Part 76
have also added a new § 108.8 that Act to enforce the law in a manner
specifically addresses assurances of consistent with the procedures used to Administrative practice and
compliance with the Act, and we have enforce Title VI. The final regulations procedure, Compliance, Eligibility,
revised § 108.9 by removing the incorporate existing procedural sections Grant administration, Reporting and
reference to 34 CFR 100.4. of the Title VI regulations, and clarify recordkeeping requirements.
34 CFR Part 108 PART 108—EQUAL ACCESS TO premises or in school facilities,

PUBLIC SCHOOL FACILITIES FOR THE including during the hours in which
Boy Scouts of America, Education,
BOY SCOUTS OF AMERICA AND attendance at the school is compulsory,
Equal access, Reporting and
OTHER DESIGNATED YOUTH for reasons other than to provide the
recordkeeping requirements.
GROUPS school’s educational program.
Dated: March 21, 2006. (f) Elementary school means an
Margaret Spellings, Sec. elementary school as defined by section
Secretary of Education. 108.1 Purpose. 9101(18) of the Elementary and
108.2 Applicability. Secondary Education Act of 1965, as
■ For the reasons discussed in the 108.3 Definitions.
preamble, the Secretary amends parts 75 amended by section 901 of the No Child
108.4 Effect of State or local law.
and 76 of, and adds a new part 108 to, 108.5 Compliance obligations. Left Behind Act of 2001, Pub. L. 107–
title 34 of the Code of Federal 108.6 Equal access. 110, 115 Stat. 1425, 1958 (20 U.S.C.
Regulations to read as follows: 108.7 Voluntary sponsorship. 7801).
108.8 Assurances. (g) Group officially affiliated with any
PART 75—DIRECT GRANT 108.9 Procedures. other Title 36 youth group means a
PROGRAMS youth group resulting from the
Authority: 20 U.S.C. 7905, unless
otherwise noted. chartering process or other process used
■ 1. The authority citation for part 75 by that Title 36 youth group to establish
continues to read as follows: § 108.1 Purpose. official affiliation with youth groups.
Authority: 20 U.S.C. 1221e–3 and 3474, The purpose of this part is to (h) Group officially affiliated with the
unless otherwise noted. implement the Boy Scouts of America Boy Scouts means a youth group formed
■ 2. Section 75.500 is amended by: Equal Access Act, 20 U.S.C. 7905. as a result of a community organization
■ A. Designating the existing text as charter issued by the Boy Scouts.
(Authority: 20 U.S.C. 7905)
paragraph (a). (i) Limited public forum means that an
■ B. In the chart in newly designated § 108.2 Applicability. elementary school or secondary school
paragraph (a), removing ‘‘45 CFR part This part applies to any public grants an offering to, or opportunity for,
90.’’ and inserting, in its place, ‘‘34 CFR elementary school, public secondary one or more outside youth or
part 110.’’ school, local educational agency, or community groups to meet on school
State educational agency that has a premises or in school facilities before or
■ C. Adding a new paragraph (b) to read
designated open forum or limited public after the hours during which attendance
as follows:
forum and that receives funds made at the school is compulsory.
§ 75.500 Federal statutes and regulations available through the Department. (j) Local educational agency means a
on nondiscrimination. local educational agency as defined by
(Authority: 20 U.S.C. 7905) section 9101(26) of the Elementary and
* * * * *
(b) A grantee that is a covered entity § 108.3 Definitions. Secondary Education Act of 1965, as
as defined in § 108.3 of this title shall The following definitions apply to amended by section 901 of the No Child
comply with the nondiscrimination this part: Left Behind Act of 2001, Pub. L. 107–
requirements of the Boy Scouts of (a) Act means the Boy Scouts of 110, 115 Stat. 1425, 1961 (20 U.S.C.
America Equal Access Act, 20 U.S.C. America Equal Access Act, section 9525 7801).
7905, 34 CFR part 108. of the Elementary and Secondary (k) Outside youth or community group
Education Act of 1965, as amended by means a youth or community group that
PART 76—STATE-ADMINISTERED section 901 of the No Child Left Behind is not affiliated with the school.
PROGRAMS Act of 2001, Pub. L. 107–110, 115 Stat. (l) Premises or facilities means all or
1425, 1981–82 (20 U.S.C. 7905). any portion of buildings, structures,
■ 3. The authority citation for part 76 equipment, roads, walks, parking lots,
(b) Boy Scouts means the organization
continues to read as follows: or other real or personal property or
named ‘‘Boy Scouts of America,’’ which
Authority: 20 U.S.C. 1221e–3, 3474, has a Federal charter and which is listed interest in that property.
6511(a), and 8065a, unless otherwise noted. as an organization in title 36 of the (m) Secondary school means a
■ 4. Section 76.500 is amended by: United States Code (Patriotic and secondary school as defined by section
■ A. Designating the existing text as National Observances, Ceremonies, and 9101(38) of the Elementary and
paragraph (a). Organizations) in Subtitle II (Patriotic Secondary Education Act of 1965, as
■ B. In the chart in newly designated and National Organizations), Part B amended by section 901 of the No Child
paragraph (a), removing ‘‘45 CFR part (Organizations), Chapter 309 (Boy Left Behind Act of 2001, Pub. L. 107–
90.’’ and inserting, in its place, ‘‘34 CFR Scouts of America). 110, 115 Stat. 1425, 1965 (20 U.S.C.
part 110.’’ (c) Covered entity means any public 7801).
■ C. Adding a new paragraph (b) to read elementary school, public secondary (n) State educational agency means a
as follows: school, local educational agency, or State educational agency as defined by
State educational agency that has a section 9101(41) of the Elementary and
§ 76.500 Federal statutes and regulations designated open forum or limited public Secondary Education Act of 1965, as
on nondiscrimination. amended by section 901 of the No Child
forum and that receives funds made
* * * * * available through the Department. Left Behind Act of 2001, Pub. L. 107–
(b) A State or subgrantee that is a (d) Department means the Department 110, 115 Stat. 1425, 1965 (20 U.S.C.
covered entity as defined in § 108.3 of of Education. 7801).
this title shall comply with the (e) Designated open forum means that (o) Title 36 of the United States Code
nondiscrimination requirements of the an elementary school or secondary (as a patriotic society) means title 36
Boy Scouts of America Equal Access school designates a time and place for (Patriotic and National Observances,
Act, 20 U.S.C. 7905, 34 CFR part 108. one or more outside youth or Ceremonies, and Organizations),
■ 5. Add part 108 to read as follows: community groups to meet on school Subtitle II (Patriotic and National
Organizations) of the United States group officially affiliated with the Boy criteria must be used in a consistent,
Code. Scouts or officially affiliated with any equal, and nondiscriminatory manner.
(p) Title 36 youth group means a other Title 36 youth group that requests (Authority: 20 U.S.C. 7905)
group or organization listed in title 36 to conduct a meeting within that
of the United States Code (as a patriotic covered entity’s designated open forum § 108.7 Voluntary sponsorship.
society) that is intended to serve young or limited public forum. No covered Nothing in the Act or this part shall
people under the age of 21. entity shall deny that access or be construed to require any school,
(q) To sponsor any group officially opportunity or discriminate for reasons agency, or school served by an agency
affiliated with the Boy Scouts or with including the membership or leadership to sponsor any group officially affiliated
any other Title 36 youth group means to criteria or oath of allegiance to God and with the Boy Scouts or with any other
obtain a community organization country of the Boy Scouts or of the Title
Title 36 youth group.
charter issued by the Boy Scouts or to 36 youth group.
take actions required by any other Title (b) Specific requirements. (1) (Authority: 20 U.S.C. 7905)
36 youth group to become a sponsor of Meetings. Any group officially affiliated
§ 108.8 Assurances.
that group. with the Boy Scouts or officially
(r) Youth group means any group or affiliated with any other Title 36 youth An applicant for funds made available
organization intended to serve young group that requests to conduct a meeting through the Department to which this
people under the age of 21. in the covered entity’s designated open part applies must submit an assurance
forum or limited public forum must be that the applicant will comply with the
given equal access to school premises or Act and this part. The assurance shall be
§ 108.4 Effect of State or local law. facilities to conduct meetings. in effect for the period during which
The obligation of a covered entity to (2) Benefits and services. Any group funds made available through the
comply with the Act and this part is not officially affiliated with the Boy Scouts Department are extended. The
obviated or alleviated by any State or or officially affiliated with any other Department specifies the form of the
local law or other requirement. Title 36 youth group that requests to assurance, including the extent to which
conduct a meeting as described in assurances will be required concerning
(Authority: 20 U.S.C. 7905) paragraph (b)(1) of this section must be the compliance obligations of
§ 108.5 Compliance obligations. given equal access to any other benefits subgrantees, contractors and
and services provided to one or more subcontractors, and other participants,
(a) The obligation of covered entities
outside youth or community groups that and provisions that give the United
to comply with the Act and this part is
are allowed to meet in that same forum. States a right to seek its judicial
not limited by the nature or extent of
These benefits and services may enforcement. An applicant may
their authority to make decisions about
include, but are not necessarily limited incorporate this assurance by reference
the use of school premises or facilities.
to, school-related means of in subsequent applications to the
(b) Consistent with the requirements
communication, such as bulletin board Department.
of § 108.6, a covered entity must provide
notices and literature distribution, and
equal access to any group that is (Approved by the Office of
recruitment.
officially affiliated with the Boy Scouts (3) Fees. Fees may be charged in Management and Budget under control
or is officially affiliated with any other connection with the access provided number 1870–0503.)
Title 36 youth group. A covered entity under the Act and this part. (Authority: 20 U.S.C. 7905)
may require that any group seeking (4) Terms. Any access provided under
equal access inform the covered entity § 108.9 Procedures.
the Act and this part to any group
whether the group is officially affiliated officially affiliated with the Boy Scouts The procedural provisions applicable
with the Boy Scouts or is officially or officially affiliated with any other to title VI of the Civil Rights Act of
affiliated with any other Title 36 youth Title 36 youth group, as well as any fees 1964, which are found in 34 CFR 100.6
group. A covered entity’s failure to charged for this access, must be on through 100.11 and 34 CFR part 101,
request this information is not a defense terms that are no less favorable than the apply to this part, except that,
to a covered entity’s noncompliance most favorable terms provided to one or notwithstanding these provisions and
with the Act or this part. more outside youth or community any other provision of law, no funds
(Authority: 20 U.S.C. 7905) groups. made available through the Department
(5) Nondiscrimination. Any decisions shall be provided to any school, agency,
§ 108.6 Equal access. relevant to the provision of equal access or school served by an agency that fails
(a) General. Consistent with the must be made on a nondiscriminatory to comply with the Act or this part.
requirements of paragraph (b) of this basis. Any determinations of which
section, no covered entity shall deny youth or community groups are outside
equal access or a fair opportunity to groups must be made using objective, [FR Doc. 06–2890 Filed 3–23–06; 8:45 am]
meet to, or discriminate against, any nondiscriminatory criteria, and these BILLING CODE 4000–01–P

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Rule: Civil Rights: Boy Scouts of America Equal Access Act Implementation

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March 24, 2006

Education (Department). Under the Act, of communication and recruitment.

34 CFR Part 108 PART 108—EQUAL ACCESS TO premises or in school facilities,

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