civil Title I - ERIC. NIB D. NOTE' ... Under the. guidelines, fez exam. is explained that...

TO 170 9E11

TLF

IN. ITU-PIONNIB DNOTE'JOIJRN AL CIT

DID PRICED7-.1' SC: IPTOPS

IDENT IFIER s

usrp CT

DOCUMENII BT5I1IE

IEC 114 196

Vo .;atin al. =!..atioat ion frog__ ms--Guid forDiscrimina tich and [)trial_ of ervie :=4

.

-the is of Pace, Color, a 1 C it an 1

Manlicap.of fice f 0_ Ci.v it ight - , D.C.21 Mar 7916p.

drat_ A= gl to r; v4t4 nib liar 1979

ME01/PC01 Plus PO t;3rainist: a *= va Policy; Ad ss on Cr ;

A7s; c Ilrriculum; :imine. tory t gisl,atior,;11.2 i r. a 1 P7'-',07 a rTI tloym-?at;

egIllation; Job P lacuent Minori t 1 ro lips; st e4-rl enc.:14es ; Voclt ional C r.7-3(il.ir.q; -4cv cc3tionai

4ati_on ; Vocat ion 91 5ohoc1 !-;Civil Rights Act 1963; ;ehabili_tation Act 1973;

:11-ndIT.1--1.-t*..5 1972

uidelines 91171n t h= civilrep,. 1) -11 i es oipients of tedera 1 limas cff ri-administering Vr371 al ducat on pre-grams (effect ive /I arch 15,1979). 'The guide1i-rrss derive from and p.-.(3 vids guidance mplementato ri i VI of 4-he Civil Pight.s cf 19614 (and the implementingdepartmental regulation) , Title I of the Education Amendments "::,t1 972 (and the imolemen ing departmenta 1 reaula tion) and Section 504of the Rehabilitation Axct of 1973 (and the impleton king departmentalregulation) . The ridelin ----a give vocal =offal schools, and 5.4=at.F.

aq adminiqtering them, gliidance cr how they can assure thattheir programs are !on- d tory:: an: describe requi-re1-14-,s inte.,v raj. areas, incltviing cur'«cula,placement, and employment. Under the. guidelines, fez exam isexplained that administrators of vocat iota 1 training programs cannot_establish geographical a*t endan oe zones 11: select sites for tewschools Which exclude minorities 'frca cc cztuni tia2.$ offered in `hero

rmg rams. (A uthoriptili)

* ***

Re prod uction s supplied by EDR' are the host t hat can be [Rade ** from the orrtgi.ral document. *

***gam** *4. *** ##* ***# # *****

WEDNESDAY, MARCH 21, 1979

U OEPARTMENTOF HEALTH,EDUCATION& WELFARE

NATIONAL INSTITLITEOFEDUCATION

INI% DOCUMENT HAS DEEN EPRO

AT INC. IT POINTS OF v OR OPiNIONSSTATED Do NOT NECESSARILY REPRE-SENT OFFICIAL NATIONAL INSTITUTE_ OFEOIJCATION ?Qs, TION OR PEoiEY

DEPARTMENT OFHEALTH,

EDUCATION, ANDWELFARE

Office for Civil Rights

Office of the Secretary

VOCATIONAL EDUCATIONPROGRAMS

GUIDELINES FORELIMINATING DISCRIMINATION

AND DENIAL OF SERVICESON THE BASIS OF RACE, COLOR,

NATIONAL ORIGIN, SEX ANDHANDICAP

17162 RULES AND REGULATIONS

1.4110-12-M1

Title 45-2ublic Welfare

SUBTITLE ADEPARTMENT OFHEALTH, EDUCATION, AND WEL-FARE

VOCATIONAL EDUCATIONPROGRAMS

Guidelines for Eliminating Discrimina-tion and Denial of Services on theBoils of Race, Color, NationalOrigin, Sex, and Handicap

AGENCY: Office for Civil Rights, tje-partment of Health, Education. andWelfare.ACTION: Final GUidelines for Voca-tional Education Programs,SUMMARY: These guidelines :,,xplainthe civil rights responsibilities of re-eipients of Federal funds offering oradministering vocational educationprograms. They derive front and pro-vide guidance supplementary to TitleVI of the Civil Rights Act of 1964 andthe implementing departmental regu-lation (45 CFR Part al), Title IX ofthe Education Amendments of 1972and the implementing departmentalregulation (45 CFR Part 86), and Sec-tion 504 of the Rehabilitation Act of1973 and the implementing depart-mental regulation (45 CFR Part 84).EFFECTIVE DATE: March 15,1979.FOR FIJRTHER INFORMATION'CONTACT:

David Gerard. Office of Standards,Policy, and Research, Department ofHealth, Education and Welfare.Office for Civil Rights, 330 Indepen-dence Avenue, S.W., Washington.D.C. 20201 (telephone 202-245-9177).

SUPPLEMENTARY INFORMATION:The following Guidelines explain howcivil rights laws and Department regu-lations apply to vocational educationprograms. They are issued as a resultof injunctive orders entered by theUnited States District Court for theDistrict of Columbia in Adams v. Cali-fano. They are also issued because theDepartment has found evidence of

continuiiig unlawful discrimination Invocational education programs.

Ltoftd. OASIS FOR TUE Gawk:taws

Title VI of the Civil Plights Act of1964 prohibits discrimination on thebasis of race, color, and national originin any program or activity receivingFederal financial assistance. The De-partment of Health, Education, andWelfare issued regulations implement-ing Title V1 in 1905. Title IX of theEducation Amendments of 1972 pro-hibits discrimination on the basis ofsex in education programs receiving orbenefiting from Federal financial as-sistance. 'The Department issued regu-lations'irnojernenting Title IX in 1975.Section 504 of the Rehabilitation Actof 1973 prohibits discrimination on thebasis of handicap in any program oractivity receiving Federal financial as-sistance. 'The Department issued regu-lations implementing Section 504 in1977. These civil rights statutes andtheir Implementing regulations applyto vocational education programs.

In 1973, the Department of Health.Education, and Welfare was sued forits failure to enforce Title VI in anumber of education areas, includingvocational education (Adams v. Cali-/ono). As a result of this litigation, theDepartment was directed to enforcecivil rights requirements in vocationaleducation programs through compli-ance reviews, a survey of enrollmentsand related data, and the Issuance ofguidelines explaining Hie applicationof Title VI regulations to vocationaleducation. The Guidelines that followare issued to meet a requirement ofthe Adams court orders.R. FACTUAL BASIS FOR THE GUIDELINES

The Guidelines are also adopted be-cause it is apparent that many voca-tional education administratorsengage in unlawfully discriminatorypractices. They need additional guid-ance and support from the Depart-ment to meet their obligations undercivil rights authorities.

InforMation provided by the Officeof Education's Bureau of Occupationaland Adult Education for 1976 and 1977reveals that male and female studentsare concentrated in programs tradi-tionally Identified as intended forthem: --

percent of total enrollment

1978 1997

f91919 Female Male Female

Flealtft orcuPatlens.... 21.2 78.8 21.2 78_8

Occupational homeeconomics- . .. . 15-3 84.7 16.1 83.0

Coo_surnerifikihomemaking- ... --...... 18.8 83.2 18.4 81.6

Office nrcuptni011-3..... 24.8 75.1 24.9 75.1Tcchnical.......- .. . 88.7 11.3 83.0 17.0

FEDERAL REGISTER, VOL. 44, NC. 56--WEDNESEtAY, MARCH 21, 1479

I'-rfli 4IO!.,i,-rin4iiii It

ii

12i' itiiir ailtit ttrtt%i'

rr1l' Intl ITIIIII.tT rId 47 .4 42 7 454 II 4

Ir ritiiijut 111 7 II :4 2 14.4

iri recent years vocational critical ionadrolnistratcirs have addiesed unlaw-ful discrirninat ion in their programsGIrierally. they have taken advantagef the at'firrnativr action provisions of

trIl Vocational Education Arrriid-rrit'rlLs of 1976 Administrative proce-drires ,o implement these proviotisarc ri Place and are contributing toc'qiial opportunity. ThUS the aboverhart suggests that between 197 andi97'7, female participation increased Initchni cal. trade and ir7dllstrjzl. and vu-riltit)rlaJ agrlc'tlltllri' programs. Therewas also an increase iii mali' participit-tiori in Consumer and FTometnakirprograms and Occupational 1-lotteEconomics programs

Current information on the enroll-merit of handicapped and minoritystudents in specific vocational pro-grariIs is riot available This deficiencywill be corrected through the Officefor Civil Rights Vocational EducationSurvey of 1979 arid the VocationalEducation Data System (VEDS) re-quired by the Vocational ducation

Amendments of 1976. However, compli-ance reviews conducted by OCR inves-tigative staff from 1973 to 1978 con-ststently found civil rights violationsIn vocational schools. For example:

1. Eligibility requirements such asresidence within a geographic area oradmissions tests deny vocational edc-ration opportunities an the basis ofrace, color, national origin and handi-cap:

2. Handicapped students are lrnper'miss ibly assigned to separate annexesor branches: they are also deniedequal vocational education opportuni-ties as a result of inaccessible facilitiesarid inadequate evaluation procedures:

3, Vocational schools established forstudents of one race, national origin orsei continue as essentially segregatedfacilities;

4, ational origin minorities withlimited proficiency in English aredenied equal opportunity to pa'tici-pate In vocational programs:

5. Vocational education administra-tors often fail to adequately protectagainst discrimination fri the place-ment of students with employers;

6, Faculty and staff are assigned tovcatlofla1 programs an the basis ofrace, national ariglA, sex and hartrCap,

lkcports from advocate groups haveidentified other possible civIl rightsviolations, For example, the?4.4&C,F. Legal Defense Fund LDF)

RULES AMD KEGULATIONS

lI;tS i'lt'uid I hat 4t ttt' agl'ri('i(s -ngiu'In titilawl u) dlsc'rltnlmuit ion ituitlilS)

III'I5ii1 ari'Us iii I 1( t(llor(t 1(111 (if Pecli'r-

a I uea lion a I ni Ii' ;tl InI) Iii nets.

C. ScuPro' (ulrwLlw:s-rht' (Jo iclellr7eS l-inlrnarll' itciclress

tIti' civil righ t.s (-blat inns list ('4.1 IntIne-diately above as found in ccitripllanci'reviews They do Ilcit Identify t'serycivil rights violtiotl that may arise ina vocallcnitl education setting. TheGuidelines derive from nrid uppin-mcmi and must hi' rt'uld iii c'OflJlJflVt lollwit It civil rights las and Depart mei-itrn'gul atlons

Section 111 of tile Guidelines. whichp ilsibits disrlt(ttl ion in he-' tellocmttion of vocal ion at edciu'at Ion fu ttds, de-rives in part from and filliSt be read inCorljilitCtiofl with, tile Vocational EduCation Art. rtiicl Office 411 Education ill-i-plenicittirun rruIar 14101 Li1t't' Guide-lines, particularly Section 111, havebeen reviewed by the D-partruwnt'.sOffice of Edticatirni and found cohsi5t-

ent with its poliCtC.

0. S'rATg Anrrjca' Rg.sl'oN5iahtITIgS

Most comments Ora the Guidelinessought deletion or clarification of. or achange to, a stated paragraph or sub-paragraph. However, &ction IL whichrecords the responsibilities of Stateagency personnel, wss questioned inits entirety as imposing a new burdenmore reasonably utitsigrieci to theOffice for Civil Rights.

Section II contains two require'ml-nts. First, i4tate agencies in per-forming any activity required underState or Federal law, must be certainthat ti-icy do not "require, approve of,or engage in" any unlawful discrimina-Lion. For example. State agencies areoften required to review or approvethe site selected hy or ti-ic buildingspecifications approved by local schooldistrict officials to ossure that theproject is fiscally sound, The Guide-lines provide that in such cases theState agency must also ecai'niriewhether the site location will result liithe derti al of access to minority grouppersons and whether the building andprograms will b iiiaccessible to handi-capped persons. If it finds such viola'tions the State agency cannot approvethe project, The second requirementof Section U is generally addressed tothe agency referred t in the Voca-tional Education Amendments of 1978as the "State 3oard or agency -

sole[ly] respon4 ibl for the adiniruls'tration or - supervision of the pro'grams [conducted In the State] underthe Act." Tsese agencies are requiredby the Guideline& to monitor subreci'pients for cIvLl rights compliancethrough technlcfll assistance, analysesof already compiled information anddata, and periodic compliance reviews.

17163

'lilI'tll' art' 5411 II' (V rtcitiirt'nit'nts,'list' [Iit tllnre'IV n-_Ntus,h's what hutstietoilit at ttJrl41e (Ic'- 1 reel tue-n t cutninot.t'ngngi' 0r 115 rt in unIt' irs cinlawftil cliii-

cr1 asits itt ion. Tl-1e o'cu nil ri 'q iii ri'-ru'nt mon it on fl( se-il) recipients forcompiiitrsct' derlvv I ru Its the Depart-

fls('fltii 'rub VI r"t{'il at ion whit-lu Pro-

vides iii sub luarairtuils 1104(b):

FverV uaii)5il('ul(jtItI iy a Stall' or Slatea'uuy to c-ilrr icit a program lii voicing

c'oustiolilrlg F'e-'dergtl finilinclILl lSSiuit-flhic('

shall ' provIde ir be a'coospaiild bynrovli'nul for sOrts methods of

admits i5t ration I tire found by the re-

SpOoth)' ne'tsartnu'tut official to give rca-sesnabic' 41siIrnnei' Inst (hi' itpulirausi and oil

rrclpient.s of Federal filiatuclsi ZtMiiatiLilCe

Lioder SLiCh prorah a'til rouply with all Ti'-(tuirementii IflIpOittI ba °r isursuani to thl

regulation.

Thuii the Department '-s Title VI reg-tilist ion requireS State agency recipi-cots i-u uinpt arid obtairi Departmentapproval for rnethods and proceduresthrough Which aubrecipienLs cats bemonitored tar compliance with civilrights ittitIlri tiCs,

It was suggested that it Is "unrealis-tic" to expect closely aligned offi-Cials-.-State a:geticy aisci local person-

nelto work at odds \vitla. each other,This l neither (lie Intent nor the ex-pccted result of the final Guidelines.Ivlany forms of iinpermlssble dlscnlml-nation are caused by mIsunderstand-ings or Iscic of Information and guid-ance on the reQuineiilents of the law.State agency perSonnel should there-fore be of assistflriCe to and not irs con-flict with local personnel. Ivioreover,there is a need for adItloflal concilia-tory rather t,hms adversarial compli-ance activity,State agenci5 also argued that the

Office for Civkl R,ig'lst.s Cannot and5hould not de1ete Its responsibilitiesfor civil rights ersforcerriezst to recipl-erits. Suds a result is TIeitt'ier Intendednor expected, Tl'ie Guidelines contem-plate adding, hot substituting, re

sources for clvii rights compliance activity. Pyle Bureau of OccupatIonaland Adult Edtifl presently moral.tors State agcmcles for complianceWith the Vocational Education Act,Under the Ocilcieliries. flOAE andState agencies will engage It-i activitiessupplementary t0 those pf the Officefor Civil These Guidelines da

'Although the regulations for Tltl IXand Section 504 dO 0t sssign a, similar re

sponalbilty to State agencies, the Departmerit iritend to lestie a Notice of ProposedRulemaking to cifrutinate tills lnconslstCflcywith Title VI If rvlsioru to the Title IXand Section 504 regulatloro are riot adoptedby the Department, theaC CJciideiiries mustb revised,tStat agencies iii reauire additiorial as-

Clatance from Oct and DO/aE to under-stand a-rid meet their reaorusIbilltIes uOderthe Outde(ifles, Such tisu1sta1ce will be pro-vided through Corp.flda- to be 'uedduring tile next &o days- See comment aridresponse number 9, belOw-

VWIIAL IEG15TER, VOL. 4-1. NO, S6WIDNESD*Y, MAFCPI 21, 1979

.'7164

lint tlil(4l11li l.i t .111% itltict (ill illt(F c' iipll tci' (nil itilnrintntiil acI ivitv. And OCR will ltacl. assist atidanti I or BOA E and SO. Ii' ;teciici(- I

Lid' civil rllits art iiitt'. ThiS aproach don vi's from tile Di'part lOon 's

'tininitineil tin brint all of its acticlesa tici reel ph'nts (U I. lit' critical I ask 01i bt am hg c'oii'ipl manct' at (Ii civil rIg ii tlaws and regulations. It is also sip-boned by (hi' iJ nit ott St atm's Civil

lglits Coin in irs ton

CONCLOSION

Vocatioria eclilcat ion is a critical aridtrowint sector of the Mat innslion system. It is tiE fc'red in aver 14,000school distrirt s and iii community at-idjunior coIlegs, It is also urovidcc.lthrough more than 2000 secoiic1ar'and pflstsi'cnfldary u'ocamional ecltn'dl.lion cm'tit ens loll I'Ii known a-s Area Va.cal ional Education Schools, or AVES I

that have as rht-ir primary on suIt' oh.jert lye 1 hr trarhing of skills that ICatito ernplovnit'nt. Tlmc variations of prOS

grairn arid codrses number in lilethotisands. lThicy include, for t'xanl plc,"'ork study' for students rit'edingDart'tinie employment to supporttheir vocat jovial studies: 'cooperatit'm'eduvation for students who receiVecredit for work at jobs related to theirvocational field: and "abprorit ice train.ing" for studrnts affiliated With alabor union or riot her sponsor. What.ever the organization of locationaleducation, it is closely' tied to the skilldevelopment noeds of comniurlit ic's,States, and regions. Obtaining compli.ance with Civil rights authorities itthese diverse programs will requiretIle Participation and cooperation ofall vocational education cdrnini.sfra.tars and all agencies of the Depart.merit of Ia1th, ducatian and Wel-fare. These Gujdljnes are designed toencourage that cooperation and corn.pllance activity. They arc providedwith the epuctatian that they willcontribute to bringing art end to tin-lawful discrimination against personsseeking the skilla neCessary for gainfuland meaningful employment.

PART $OJlONDISCRIMINATiOIt1UNDER PROGRAMS RECEIVINGFWERAL A5SISTAVCE THROUGt'lTHE DEPARTMENT OF HEALTH,EDUCATION, AND WELFARE EFFEC.TUATION F TITLE VI OF THE CIVILRIGHTS ACT OF 1964

l fri 45 CFR Fart 80 Appndi isadded to read in follows:

United States Coiyiriiiasion en CivilRights. The Fcd.erl Cimil Rights Enforce-rnrnt EJJorl.1974, Vol. VI. To Ezted fm'dpc-qi Financial .1,iiiatiee. 1975. p 509.

RULES AND REGULATIONS

It cllul1ci.lN;l 1(11 l:i iliIN.iiiNi

I)iiliSiIN iiiiiN .',NiI lr'Ni II lit-ill Its

cs rum. It,m',is '1 I?'t.. I. iou. Ni liiru(iii ici Se:s_, 'Nil Il.\Nilll'(I' IN 'I(iloN\'I'ili ('I liON 'luslilt ii

I lii-i'm:ssn (iivlH.ii;I'

-I. iI'l'l. i',i'iIlN lit 0 lurId lIlt-s

I'll's' LiuiiiiIlli Lilt-lb I. I' Ill ilI-, Ill

si-it I"l'dl'ral IlliarIrial lilsill 01111' IiOi'.l t ho

[).'iltrlrienr of lIi'aIll, hi i(l'Ol(lil. till lVl'(fare lilt ofle-t iii- itiliiilluisit'r iirlltzr1(ilus 1

i1it'it iri.-il I'ulilt'Silllfl or t tiiiii1l. Fl1i lu

I tlilt'i, t LII' ld'l'flrv rf'i'ilull 'lii

ii. ocr Hi cmos OF cr1-i ii

liii' cIetillitioIl lIt rrI'iphe'lii -- if FrIit't;tl II

ilalil' al LlsisbIil't' Is 'st;iblI',1 'ci b l)oparilit'ilt rl'eillatillLl liOfJlillll'uililg liii' \'I.'rile l<, soil St'ctlun 50-1 il ('.'R lli).l:(1i(

(6-IOu, 114.3111.For lie' puirptusl's of 'Pit I' VS'lii c I r ri's roil Olin till' 115 i 1' St LU', 1,111

Iltiral SlitilliViIliOul ut am Stilt', or 11110 Ill-

bent Sill' of is Sale u uSlIll'ilI c11iIiuu

sian, siiy public or privat t' :10 'Hey. 111(1111

111111, or llrilano',SI ion. o- ll Ill I' iii tV, r allylflcllVilItiSl, in aol Stale, Ii (111001 Fellers! fi-ll air iii I a_au istanci' IS 0 :d 0111 ed, dl mc 'ctly ortti rilcitiul anothi'r ri'ruisle'ill - (or any pro gram.I [1(1111 dill ( .1111 slid'Ci'SSO a_a I etu cc. or t nit orfe rc'O I h1' rent. Oh I SI it 11 r erro Uui' I-cot inelude iur' ut nate bc'rivfk'Iiirl' [('((.5 t-tietitrul tinder any curb prograni (45 CI"RHo I31i0.

For lilt' purpose cut Titic I''Recipient" nle:;lris itrlY &atr or political

so bditlSiofl tlit'rl'a. or any iostrutsu'otalilyof it StntC or p1:tic'itl SubdiviSion the'reol,any public or pnu.ate agEncy. i stitution. ororg;tni',.ation, or other entity. r any personIts a'honi Federal financial i10ssistance lI CX-tc'rldc'cj directly or LtirollglI tlnalllz'r rrcipicot and which operates au education prorngram or seth ity hirh re'cciu'e- or bt'nefitsIron such assist5nre, inclttcliflg any Subunit,Suc'd'essOr, a_caiglt,'e, or transferee thereof45 CFR 882uluI.

For tie' purposes of Sect lot-i 504:Reripie'flt mealis any Slate or its pal iti-

ccl subcliviidon, city instrun,entality of aState or us political slibclivlsion. any publicor private agemics-. institution. Organlitittion,or 01 her entity, or any person to which Veil-eral financial assistance' is cytcrided directlyor tIt rough auiother rCt'iI,ilt'ilt. including Miyslicressor. assignee, Or tni isfenee' of ii recipi-(rn!. blit 051 luding tist' dli linctie beolficiarl'or he a.ssiatancr. 145 CVR 84.31 Itt.

c. ticAMFots OF BFCI?iF,N1s COvERED BY T1W.SEUioELLNCS

"l'ho follov:ing eduCatIon agencies, alienthe' provide vocational editication, arc cx.ample's of rl'cipll'ntc ravened by theseGciurie'linc

1 The board of education of a publicschool district and ItS administrativeagency.

2, The' administrative' board of a special-ized vocational high school aervig tudenisIron more than one school district.

3, The administrative board of a technicalor vocation school that is ud cxcluslrClyor principally for the provision of vocationaleducation to persona who have completed orleft nigh school (including persons .secking acertificate or an associate degree through avocational program offered by the ichooliand who are available for study in prepara-tion for entering the labor n:arkei -

1111 .uutlllliliSt ill III (1 .1111 III l

liii liluillllu, SIll il-. II ll-l'illlll'iLi in-si-lute'. skill ('Oilier llil(ll'r 'olle', 'lli5ilijllOit%'I'lllIll,i,'. III :1101 veIn 1011l't0 lull Iis 5 dl'lit Iiill'llt or 1(1 ilillii 11111 pl(\ldll'li velu'flhielil'ii '110151 1111 ill 'lIllil'Ilt.' s&'lltIilii ilflilie'lllltIi'iIltlllVIlll'Il1 .:ll, cr1 ifil'-EIl' lit' (Ii issou'iateI'ti PP

5. l' it' -Idni il ill ma: - . cord III ft Is FlIP nl

111115 (lit lOde I illL'lit:S' ,'i1iIu'0tilii 50111)111.ii. ul Si tIe' ildl'ni'V ri'l'ipll'Til iise'lf lipiruim i ill.'

ii (11:11(1111111 e'cllil'ai ion tulli III I'.

II 5xIMI'uts oF sciinni.c 'Ttl Which 'rlhEuri

cu'trif:Lisma spm'i.Y

'liii' followIng art' e'xuutnple's of thc types1'! _a'heuolN t dl a 11 ir Ii heat' C isiclel Ile,c apply.

I A junior high shnol, nuddle' school. or111111' tirades of ,i 111111 pre'h enable' In gli

S1110111 list of Ie' I Oat rum i out to lii 111cm.

lrle'ilt. or pre'liarr Iltlidt'llts ton vocatIonaled uitt I On itt t lit' secondary It' 'Cl -

2 ,Avuicationiul t'clticittlon facility alienatedby a Stale agencY.

3. A roniprc'hie'risi','e high school that hiiks aIll' i,:ir' 01101 tsr 11151 vi lv Ii r p nil-in I pitl ly usedfor providIng vocational educ'atioli: or (lintofferS at least one' vocational program tosi'I'tlndiary level sttitle'ntc who are availableIon study iii preparation for enti'nlig thelabor market; or that otters itdult vocationaleducation to persons who have completed orleft high school and who are itvSlllblc forill lidy ill preparation far entering the labormarke't,

4. A rnmprelsc'nslt'e high school. olIe'ririgthe activities deScribed above, that receivesstlidlt'hts on a contract bitch Iron-i otherschool districts for the purpose' of providingvocational education,

5. A ape'ciallwd high school used CXCIII-aively or principally for the provision of vo-cational education, that enrolls ttidenlsfrom one or mare school districts far theptirpose of providing VOcfltiOOaI eduiCuttion.

6 A rechoical Or vocatioOal schoI thietprimarily provides u'ocatlonith rdticfltioni topersons who have completed an left highschool and who are available for study inpreparation br entering tli labor market.including students seeking an associatedegree or certificate through a CourSe of voeationl instruct ion offered b the school.

7 A junior college, a conunainity college.or four-year college that has a departmentor division that provides vocational educS'lion to students seeking immediate esri-iploy'ment, an associate degree or a certificatetruroiigll it course of vocational instructionoffered by the school.

8. A proprietary School. IiCeflsCd by theState, that offers vocational educatiOn.

NoTg.SubsC0ueflt sectlofl of theseQtiidelines may tise the term serolidnry ea'cafiotial education cntrr in referring to theinstitutions described in paragraphs 3. 1 andS above or the term poatSeconetaO/ t'ocalton-a! edticittloti center in referring C0 institti-tion.l described in paragraphs 6 arid aboveor the tertri i'ocotio,iat encohioci center inreferring to any or all institutions describedabove.

It REsPONSIsILITIES AssiGNED ONLY TOSTATE Acncy RECIFiENTS

A RESpOtcSiEut.ITIEX OF ALL STATE AOEMCYREcIPIENTS

State agency recipients, in addition tocomplying with all Other provisioOs f theC3uiidc'lines relevant to them, may flat re-Qtiire. approve of. Or engage in any dlcrinil-

FEPIRAL REGISTER, VOL. 44, NO. ft..bEOlJE5OAY, MARCH 21, 1979

I')

nation or denial of servo:es ini the basis ofrace, color, national origin. sex, or handicapin performing any of the following activi-ties:

1. E-stablishment of criteria or formulasfor distribution of Federal or State funds tovocational education programs in the State:

2. Establishment of requirements for ad-mission to or requirements for the adminis-tration of vocational education _programs:

3. Approval of act ion by local entities pro-viding vocational education. (For example, aState agency must ensure compliance withSection IV of these Guidelines if and whenit reviews a vocational education agency de-cision to create or change a geographic service area.):

4. Conducting its own programs. (For ex-ample. in employing Its staff it may not dis-criminate on the basis of sex or handicap.)

B. STATE AGENCIES-essmorisiose OVERSIGHTRESFONsxBILITIts

The State agency responsible for the ad-ministration of vocational education pro-grams must adopt a compliance program toprevent, identify and remedy discriminationon the basis of race, color, national origin,sex or handicap by Its subreciptents. (A-stihreelpient,- in this eontext. Is a localagency or vocational education center thatreceives financial assistance through a Stateagency.) This compliance program) must in-elude:

1. Collecting and analyzing civil rights re-lated data and information that subreciplents compile for their own purposes orthat are submitted to State and Federal of-ficials under existing authorities:

2. Conducting periodic compliance reviewsof selected subreciplents (i.e., an investiga-tion of a subreciplent to determine whetherit engages In unlawful discrimination in anyaspect of its program); upon finding uola.w-ful discrimination, notifying the subreci-pient of steps it must take to attain compli-ance and attempting to obtain voluntarycompliance;

3. Providing technical assistance upon re-quest to subrecipients. This includes as-slating subreciplents identify unlawful dis-crimination and instructing them in reme-dies for and prevention of such discrimina-tion;

4. Periodically reporting Its activities andfindings under the foregoing paragraphs, in-cluding findings of unlawful discriminationunder paragraph 2. irnmediately above, tothe Office for Civil Rights.

State agencies are not required to termi-nate pr defer assistance to any subrecipient.Nor are they required to conduct hearings.The responsibilities of the Office (or CivilRights to collect and analyze data, to con-duct compliance reviews, to investigate com-plaints and to provide technical assistanceare :not diminished or attenuated by the re-quirements of Section 11 of the Guidelines.

C, STATEMENT or PaocEDORES AND PRACTICES

Within one year from the publication ofthese Guidelines In final form, each Stateagency recipient performing oversight re-sponsibilities must submit to the Office forCivil Rights the methods of administrationand related procedures it will follow tocomply with the requirements describe.) inparagraphs A and immediately above.The Department will review each submis-sion and will promptly either approve It, orreturn it to State officials for revision.


Ill, Gismos() Tins OF PECIFIIAL I"INANL'IAI.SISTANCE AND Onom Forms Fon VOCAFIAL EDUCATION

A. AGENCY _RESPONSIBIL.CTIE

Recipients that administer grants for vorational education racist distribute Federal,State, or local vocational education funds sothat no Student OF group of students Is wi-lawf oily denied an equal opportunity tobenefit ,from vocational education on thebasis of race, color, national origin, sex, orhandicap.

DISTRIBUTION OF FUNDS

Recipients may not adopt a formtila orother method for the allocation of Federal.State, or local vocational education fundsthat has the effect of discriminating on thebasis of race, color, national origin, sex, orhandicap. However, a recipient may adopt aformula or other method of allocation thatuses as a factor race, color, national origin,sex, or handicap [or an Index or proxy forrace, color, national origin, sex, or handicap

number of persons receiving Aid toFa:Tones with Dependent Children or with

Englisl :peaking ability] if thefactor is included to compensate for pastdiscrimination or to comply with those pro-visions of the Vocational Education Amend-Ments of 1976 designed to assist specifiedprotected groups.

C. EXAMPLE or A PATTERN SUGGESTINGUNLAWFUL DISCRIMINATION

In each State it is likely that some localrecipients will enroll greater proportions ofMinority students in vocational educationthan the State-wide proportion of minoritystudents In vocational education. A fundingformula or other method of allocation thatresults in such local recipients receiving per-pupil allocations of Federal or State voca-tional education funds lower than the State-wide average per-pupil allocation will bepresumed unlawfully discriminatory.

D. DISTRIBUTION THROILIGH COMPETITIVEGRANTS OR CONTRACTS

Each State agency that establishes crite-ria for awarding competitive vocational edu-cation grants or contracts must establishand apply the criteria without regard to therace, color, national origin, sex, or handicapof any or all of a. recipient's students, exceptto compensate for past discrimination,

E_ APPLICATION PROCESSES FOR COMPETITIVE ORDISCRETIONARY GRANTS

State agencies must disseminate inforrototitan needed to satisfy the requirements ofany application process for competitive ordiscretionary grants so that all recipients,including those having a high percentage ofminority or handicapped students, are in-formed of and able to seek funds. Stateagencies that pi ovide technical assistancefor the completion of the application proc-ess must provide such assistance withoutdiscrimination against any one recipient orclass of recipients.

F. ALTERATION or FUND DISTRIBUTION TOroseivrOE EQUAL OPPORTUNITY

If the Office for Civil Rights finds that arecipient's system for distributing vocation-al education funds unlawfully discriminateson the basis of race, color, national origin,sex, or handicap, It will require the recipietitto adopt an alternative nondiscriminatory

FEDERAL REGISTER, VOL. 44, NC

17165

method of distribution, The (Iffice for Civil'tights ntay also require the reelpient tocompensate for the el feels of its past unlaw-

discrimioation in the distribution offunds.

IV. Accr:ss asp Ansiissios or STUDENTS ToVOCATIONAL EnucATion Psomuists

A_ RECIPIENT' nEseossnouTiss

Criteeia controlling student eligibility foradmission to vocational education schools,facilities and programs may riot unlawfullydiscriminate on the basis of race, color, na-tional origin, sex. or handicap, A recipientmay not develop, impose, maintain, approve,or implement such discriminatory admis-sions criteria.

B. S3TE SELECTION FOR VOCATIONAL SCHOOLS

State and local recipients may not selector approve a site for a vocational educationfacility for the purpose or with the effect ofexcluding, segregating, or otherwise discrim-inating against students on the basis of race,color, or national origin. Recipients mustlocate vocational education facilities at sitesthat are readily accessible to both nonrain-oho, and minority communities, and thatdo not tend to Identify the facility or pro-gram as intended for nonminority or minor-ity students,

C. _ELIGIBILITY FOR ADMISSION TO VOCATIONALEDUCATION CENTERS BASED ON RESIDENCE

Recipients may not establish. approve ormaintain geographic boundaries for a voca-tional education center service area or at-tendance sone. (hereinafter -service area"),that unlawfully exclude students on thebasis of race, color, or national origin. TheOffice for Civil Rights will presume, subjectto rebuttal, that any one or combination ofthe following circumstances indicates thatthe boundaries of a given service area aunlawfully constituted:

1. A school system or service area contigu-ous to the given service area, containsnotify or noruninority students in substan-daily greater proportion than the givenservice area:

2. A substantial number of minority stu-dents who reside outside the given vocation-al education center service area, and whoare not eligible for the center reside, none-theleas, as close to the center as a substan-tial number of non-minority students whoare eligible for the center:

3. The over-all vocational education pro-gram of the given service area in compartson to the overall vocational education pro-gram of a contiguous school system) or sera,ice area enrolling a substantially greaterproportion of minority students: (a) pro-vides its students with a broader range ofcurricular offerings. facilities and equip-meat: or (b) provides its graduates greateropportunity for employment in Jobs: (I) forwhich there is a demonstrated need In thecommunity or region; (II) that pay higherentry level salaries or wages: or MP that aregenerally acknowledged to offer greaterprestige or status.

ADDITIONS AND RENOVATIONS TO EXISTINGVOCATIONAL EDUCATION FACILITIES

A recipient may not add to, modify, orrenovate the physical plant of a vocationaleducation facility in a manner that creates,maintains, or increases student segregationon the basis of race, color, national origin,sex, or handicap.

0 WEDNESDAY, MARCH 21, 1979

1'7166 RULES AND REGULATIONS

E. HEW:THEN FUll VII.HA SITE '1p: Ft:.TION AND oromierli ic susvlrF, AitrAatENTs

If the conditions specified in paragraphsIV, A, B, C, or D, immediately above, arefound and not rebutted by Proof of nondis-crimination, the Office for Civil rights willrequire the recipient(s) to serene a plan toremedy the discrimination. 'The followingare examples of steps that may be Includedin the plan, where necessary to overcomethe discrimination: (L) redrawing of theboundaries of the vocational education cen-ter's service area to include areas unlawfullyexcluded and/or to exclude areas unlawful-ly Included; (2) provision of transportationto students residing in areas unlawfully ex-cluded: (3) provision of additional programsand services to students who would havebeen eligible for attendance at the vocation-al education center but for the discriminato-ry service area or site selection; (4) reeasign-merit of students: and (5) construction ofnew facilities or expansion of casting facili-ties.

I. name:tine FOR ADMISSION TO moat-wveVOCATIONAL EDUCATION errertlis BASER ONrallaarateAt. Liu ITS iNPOSEb ON SENDINGSCHOOLS

A recipient may not adopt or maintain asystem for admission Co a secondary voca-tional education center or program thatlimits admission to a fixed number of stu-dents from each sending school included inthe center's service area If such a systemdisproportionately excludes students fromthe center on the basis of race, sex, nationalorigin or handicap, (Example: A.ssurne 25Percent of a school district's high schoolstudents are black and that roost of thoseblack students are enrolled In one highschool; the white students. 75 percent of thedistrict's total enrollment, are generally en-rolled In the five remaining high schools.'This paragraph Prohibits a system of acleils-eon to the secondary vocational educationcenter that limits eligibility to a fixed andequal number of students front each of thedistrict's six nigh schools.)

O. REHM= FOR VIOLATION OF ELIGIBILITYBASED ON NOMSISICAL LtratTs RrQuIREAurras

If the Office for Civil Rights finds a viola-tion of paragraph F', above, the recipientmust implement an alternative system ofadmissions that does not disProportionntelyexclude students on the Rash of race, color,national origin, sex, or nandlcaP.

II, rtlelattyry FOR ADMISSION TO vocATIoNALEDUCATION cEriTras, aftArictiltE OR ANNEXESRAM It FON arturEttr ur-rIoN

A vocational education center, branch orannex, open to all students in a service areaand predominantly enrolling minority stu-dents or students of one race, nationalorigin or sex, will be pros-tuned unlawfullysegregated if: I) it was established by a re-cipient for members of one race, nationaloriglo or sex; or 2) it has Since its construc-tion been attended primarily by members ofone race, national origin or sex; or 3) mostof its program offering's nave traditionallybeen selected predorninantelY by membersof one race, national origin or sex.

I. EtEmEal Es Fort FACILITY sgRagoArtom LINDERSI oerser OYr19N PLAPJS

If the conditions specified in paragraphIV -If are found and net rebutted by proof

FEDERAL

Of nondiscrimination, tile Other for CellRights will require the rceipient(s) tosubmit a plan to remedy the segregatimeThe following are examples of sterna thatmay be included in the pram where neces-sary to overcome the discrimination

( I) elimination of program duplication inthe segregated facility and other proximatevocational facilities; (2) relocation or "clus-tering- of programs or courses; 3) addingprograms and courses that traditionallyhave been identified as intended for mem-bers of a particular race, national origin orsex to schools that have traditionally servedmembers of the other sex or traditionallyserved persons of a different race or nation-al origin, 4) merger of programs Into one fa-ditty through school closings or new con-struction; 5) intensive outreachieerultmentand counseling; ti) providing free transporta-tion to students whose enrollment wouldpromote desegregation,

(Paragraph J omitted)

K. ELIGIRTITTy tiksED ON mu-ea-Noe OF tacitAPPLICANT UNDER ADMISSIONS CRITERIA

Recipients may not Judge candidates foradmission to vocntional education programson the basis of criteria that have the effectof disproportionately excluding persons of aparticular race, color, national origin, sex.or handicap. However, If a recipient candemonstrate that such criteria have beenvalidated as essential to participation in agiven program and that alternative equallyvalid criteria that do not have such a dispro-portionate adverse effect are unavailable,the criteria will be Judged nondiscrimina-tory. Examples of admissions criteria thatmust meet this test are past academic per-formance, record of disciplinary infractions.counselors' approval, teachers' recommen-dations, Interest inventories, high school di-ploma and standardized tests, such as theTest of Adult Basic Education (TABS).

An Introductory, preliminary, or explora-tory course may not be established as a pre-requisite for admission to a program unlessthe course hies been and is available withoutregard to race, color, national origin, sex.and handicap. However, a course that wasformerly only available on a discriminatorybasis may be made a prerequisite for admis-sion to a program If the recipient can dem-onstrate time (a) the course Is essential toparticipation In the program; and (b) thecourse is presently available to those seek-ing enrollment for the first time and tothose formerly excluded.

L. ELIGIBILITY OF NATIONAL ORIGIN mirloarrYPERSONS WITH LIMITED ENGLISH LANGUAGESKILLS

Recipients may not restrict an applicant'sadmission to vocational education programsbecause the applicant, as a member of a na-tional origin minority with limited Englishlanguage skills, cannot participate in andbenefit from vocational instruction to thesame extent as a student whose primarylanguage is English. It is the responsibilityof the recipient to identify such applicantsand assess their ability to par ieipate in vo-cational instruction.

Acceptable methods of identification in-clude; (I) identification by administrativestaff, teachers, or parents of secondary levelstudents; (2) identification by the student inpostsecondary or adult programs: and >3appropriate dieenostic procedures, if nKes-sary.

itoelPienie inu.st lake olena h. open ellcational programs In these national originminority students. A recipient must demon.at rat e t hat a coneentrat ion of _students withlimited English language skills in one or afew programs is not the result of diserimina-tory limitations opon the opportunitiesavailable to such students.

M. REMEDIAL ACTION IIEHALF OF' PERSONSWITH LIMITED ceotisil LANGUAGE SKILLS

If the Off ice for Civil Rights finds that arecipient has denied national origin minor-ity persons admIa.ion to a vocational schoolor program because of their limited Englishlanguage skills or has assigned students tovocational programs solely on the basis oftheir limited English language skills. the re-cipient will be required to submit a remedialplan that insures national origin minoritystudents equal [teems to vocational educa-tion programs,

N. EQUAL ACCESS FOR HANDICAPPER STUDENTS

Recipients may not deny handicapped stn-dents access to vocational education pro-grams or courses because of architectural orequip-lent barriers, or because of the needfir rnated aids and services or auxiliaryaide. If necessary, recipients must: (l)modify instructional equipment; (2) modifyor adapt the manner in which the coursesare offered; (3) house the program in facili-ties that are readily accessible to mobilityImpaired students or alter facilities to makethem readily accessible to mobility impairedstudents; and (4) provide auxiliary aids thateffectively entice lectures and necessary ma-terials available to postsecondary handi-capped students; (5) provide related aids orservices that assure secondary stuck 'its anappropriate education.

Academic requirements that the recipientcan demonstrate are essential to a programof instruction or to any directly related li-censing requirement will not be regarded asdiscriminatory. However, where possible. arecipient must adjust those requirements tothe needs of individual handicapped stu-dents.

Access to vocational programs or coursesmay not be denied handicapped students onthe ground that employment opportunitiesin any occupation or profession may bemore limited for handicapped persons thanfor non-handicapped persons.

O. runic NOTIFICATION

Prior to the beginning of each school year,recipients must advise students, parents.employees and the general public that allvocational opportunities will be offeredwithout regard to race, color. nationalorigin, sex, or handicap, Announcement ofthis policy of non-discrimination may bemade, for example, in local newspapers, re-cipient publications and/or other mediathat reach the general public, programbeneficiaries, minorities (Including nationalorigin minorities With limited English lan-guage skills), women. and handicapped per-sons. A brief summary of program offeringsand admission criteria should be included inthe announcement also the name. addressard telephone number of the person desig-nated to coordinate Title IX and Section504 compliance activity,

If a recipient's service area contains acommunity of national origin minority per:ins with limited English language skills,public notification materials must dissernitiated to that community In its Ian-

WIPER, VOL. 44, NO. 56.. WRGNESDAY, MARCH 71 1979

emote and must slate WM reitifilelitii willtake steps to assure that the lack of Englishlanguage skills will not he a barrier to admission and participation in vocational edit,cation programs.

V. COUNSELING AND PitEvocATioPROGRAMS

A. RECIPIENT RESPONSIBILITIES

Recipients must insure that their counsel-ing materials and activities oneluding stu-dent program selection silt eereertemploy-ment selection), promotional, and recruit-merit efforts do not discriminate on thebasis of race, color, national origin, sex, orhandicap.

a. COUNSELING AND PROSPECTS roe success

Recipients that operate vocational educa-tion programs MIMt Insure that courtse'orsdo not direct or urge any student to enrollin a particular career or program, or meas-ure or predict a etudent's prospects for sue-cots in in any career or program based uponthe student's race. color, national origin,sex, or handicap Recipients may not coun-sel handicapped students toward more re-strictive career objectives than nonhandi-capped students with similar abilities andinterests. If a vocational program dispropor-tionately enrolls male or female students,minority or nomninority students, or handi-capped studente, recipients must take stepsto insure that the disproportion does notresult from unia-wful discrimination in retireseling activities.

C. STUDENT RECRUITMENT ACTIVITIES

Recipients must conduct their student. re-cruitment activities so as not to exclude orlimit opportunities on the. basis of race,color, national origin, sex, or handicap.Where recruitment activities involve thepresentation or portrayal of vocational andcareer opportunities, the curricula and pro-grams described should cover a broad rangeof occupational opportunities and not belimited on the basis of the race, color, na-tional origin, sex. or handicap of the stu-dents or potential students to whom thepresentation is made. Also. to the extentpossible, recruiting teams should Includepersons of different races, national origins,sexes. and handicaps.

D. COUNSELING OF STUDENTS WITH LIMITEDrerstists SPEAKING ABILITY OR REARING TM-FAIRmENTS

Recipients roust insure that counselorscan effectively communicate with nationalorigin minority students with limited Eng-lish language skills and with students whohave hearing impairments, This require-ment may be satisfied by having interpret-ers available,

E. PROMOTIONAL ACTIViTIES

Recipients may not undertake promotion-al efforts (Including activities of school offi-cials, counselors. and vocational staff) in amanner that creates or perpetuates stereo-types or limitations based on race, color, na-tional origin, sex or handicap. Examples ofPromotional efforts are career days, par-ents' night, shop demonstrations. visitationsby groups of prospective students and byrepresentatives from business and Industry.Materials that are part of promotional ef-forts may not create or perpetuate stereo-types through text or Illustration. To the

RULES AND REGULATIONS 171.67

DOSSItnc Cllry stIntlid portray' malesor females, minorities or handicapped per-sons in orogrrims and occupations in whichthese groups traditioniiip. have not !Wenrepresuntticl, if .t recipient's scrvicit ascii pon-t inns a eornmunity of national origin minor,it y persons with limited English lartguageskills, promotional literature must he Ms,ributed to that community in its langlittpIu

VI. EquAL appnRIUNITY IN THE VocAltioNALFours ruse IN Mee:poem- SErTtNG

A. ecrosmoneetoes eon eArmicamisoSTUDENTS

Recipients must place secondary levelhandicapped students in the regular educe-tinned environment of any vocational educe-Hon program to the maximum extent appro-priate to the nerds of the student. unless itcan be demonstrated that the education ofthe handicapped person in the regular envi-ronment with the use of supplementary aidsand services cannot be achieved satisfactori-ly. Handicapped students may be placed in aprogram only after Me riteipietin satisfiesthe provisions of the Department's Reguirt-Lion, 45 CFR Part 84, relating to evaluation.placement, and procederatsialeguards. If a-separate class or facility is identifiable asbeing for handicapped persons, the facility,the programs. and the services must be coneparable to the facilities, programs, and serv-ices offered to nonhandicapped students.

B. STUDENT FINANCIAL ASSISTANCE

_ipient8 may not award financial aesist-

alley in the form ot loans, grants, scholar-ships, special funds, subsidies, compensationfor work. Or prizes to vocational educationstudents on the basis of race, color, nationalorigin, sex, or handicap, except to overcomethe effects of past discrimination, Recipl_erns may administer sex restricted financialassistance where the assistance and restric-tion are established by will, trust, bequest,or any similar legal instrument, if the over-all effect of all financial assistance awardeddoes not discriminate on the basis of sex.Materials and information used to notifystudents of opportunities for financial as-sistance may not contain language or exam-pipe that would lead applicants to believethe assistance is provided on a discriminate-ry basis. If a recipient's service area con-Loins a community of national origin Minor-ity persons with limited English languageskills. such information must be disseminat-ed to that community iti its language..

C. HOUSING IN RESIDENTIAL POSTSECONDARYVOCATIONAL EDUCATION crenens

Recipients must extend housing opportu-nities without discrimination based on race,color, national origin, sex, or handicap, Thisobligation extends to recipients that provideon-campus housing and/or that have agree-ments with providers of off-campus housing.In particular. a recipient postsecondary vo-cational education program that provideson-campus or off-campus housing to its non-handicapped students must provide, at thesame cost and under the same conditions,comparable convenient and accessible haus-Ing to handicapped students.

D- COMPARABLE FACILITIES

Recipients must provide changing rooms,showers, and other facilities for students ofone sex that are comparable to those pro-vided to students of the other sex. This maybe accomplished by alternating use of the

FEDERAL REGISTER, VOL. 44, 0

:lint,' facilities or by pile isi it,! suecomparable facilities.

Such facilities must lit' adapted ter illiliti'lied to the extent necessary to mike tin, vo-te-tut-ilia' education program mndile acctissi-hie t o han(iicitimed persons.

VII. WORK STUDy, rODVISRATIVE VoCATIONALEnticATToN, Jon PlAcEMENT, AND ApPREN-TIGE TRAINING

A. liEsp0NSIBILITIEs IN cOuitEHATIvE Vut A-TILINAL EDUCATION iiiinGRAmS AVoliksrunyPROGRAMS, AND JOB pLAcEMENT pRoGRAMS

A recipient must insure Diet: ( al it doesnot dIscrimihate against its students on thebeets of race, color, national origin, sex, orhandicap in making available opportunitii-isin cooperative education, work study andJob placement programs; and Ib) studentsparticipating in cooperative education, workstudy and job placement programs are notdiscriminated against by employers or pro-spective employers on the basis of race.color, national origin, sex or handicap in re-cruit Entine hiring, placement, assignment towork tasks, hours of ennsioyment, levels ofresponsibility, and in pay.

If it recipient enters into a written agree-ment for the referral or assignment of stu-dents to an emploYer, tilt' agreement MUSE_contain an assurance front the employerthat students will be accepted and assignedto jobs and otherwise treated withoutregard to race, color, national origin. sex, orhandicap.

Recipients may riot honor any employer'srequest for students who are free of handi-caps or for students of a particular race,color, national origin. or sex, In the eventan employer or prospective employer is orhas been subject to court action involvingdiscrimination in employment, school offi-cials should rely on the court's findings ifthe decision resolves the issue of whetherthe employer has engaged in unlawful dis-crimination.-

a. APPRENTICE TRAINING PROGRAMS

A recipient may not enter into any agree-ment for the provision or support of appren-tice training for students or union memberswith any labor union or other sponsor thatdiscriminates against its members or appli-cants for membership on the basis of race.color, national origin. sex, or handicap. If arecipient enters into a written agreementwith a labor union or other sponsor provid-ing for apprentice training, the agreementmust contain an assurance from the unionor other sponsor: (1) that it does not engagein such discrimination against its member-ship or applicants for membership: and (2)that apprentice training will be offered andconducted for its membership free of suchdiscrimination.

VIII. EMPLOYMENT OF FACULTY AND STAFF

A. EMPLOYMENT oerirtansty

Recipients may not engage in any employ-ment practice that discriminates againstany employee or applicant for employmenton the basis of sex or handicap_ Recipientsmay not esisage in any employment practicethat discriminates on the basis of race,color, or national origin if such discrimina-tion tends to result in segregation, exclusionor other discrimination against students.

6WEDNESDAY, MARCH 21, 19T9

17168

1 ill.itll't Mill

I.ipii'tila iitt nit ItnIlt I Iteir rit'rtttInietit br ttllli't'a itt I'c t'CitlitlltIfll

IC',. or 'ttrllpattt't, tttpru,nrIIt)iiatil' (tiltnt eratina of ii part hula r rae,'. color.

ital until tlrugttl ,t' a. or haiiitt'ap t'itt'rhli for1 hr pci rpoai of ni irroin I it g liar ,fl it a Ofpast ihat'rtnittiattoi,. Fl,rtt aoltrrr of fatttltmust lat flu-it Itt-ti thai I ii,' riciptint ttür 1111

.ttau'rtrtltilai' itt uniplia mill ott til,' iiit ittrace, color nattottal Ortftli, ai' 5. jr itFtntitu'iIi

1' esrTu:Ftr4s lit' laiS('NIMLIATION

tVlteit,'t or lii, Of tier for CIt ul Htgttlafinds F hat in light of the rt-proontatiun ofprottt't i'd groups in I hi' ri 1tvot labormarket t hero a signtfurimt ttraiji'rrrprt'atit[atton or tat errt'pri'iht'ntatlofl of 1irot,'ei idgroup persons on the staff of is vocationalrdticat ton school or program it a-ill pri-atunie I hat t ho dtaprnpnrl ton rt,tlt fromott I as [itt u-i hO'r I ip [tat I nil Tia a prrali nip! toncan hi' ovirrnrnr 1w print that citialtttrd per-auras if I h particular r;tee. color liattorialorigin or Six, or that qualified liancluctcpptdpt'rsoris art riot in fact it tat I alit e to 1 hi ret,'551.11 Iaiior rnarklt

it. '(ALAIIY Pot IC'Il.i.

Rt't'uptrnls rOust etabIth atid mcuntatnfacUlty aalisrv sotles and policy based upon[hr condltion nd resporisihululuro of urn-plois-rnu-'nt, Without regard to rae,', color. nattonal origin. Wa or handirisp.

F. FMPLOYMF-NT OFi'oRftt?AITIFa Frill

IIANOICAFPFII APPLiCANTS

RectpttT'nts rotulut provide equal etnployri.1rnt opportunities for teachtrlg anti a,Jmin-isfrtiCi' postnona to handicapped appli-cants who can perform tile esaetlaf tune[ions of the po,sitinn in question, ecipientsrnuat make reasonable acCommodation for[ho phyicis! or mental limitations of hanOi-capped applirants 'tito arc otherwise qtuati-fled uinlu'sA recipients can demonstrate thatlit' citron, a octal torl a nub ri Into u',' act utmi Iii'

hardship.

F. Tot: FFFECTS or PAST DfisCilIMf4Ftola

Rrrtpients rOust take steps to Os rrcomt'the effects of pcLst di,serintlitcut,on in the rg-crutirl-tent, hiring, and assigntrient of factil-ty. Such steps may include [ito recruitmentOr reassignment of qualified persona of aparticular rare, national origin, or Sex, orsho art' hadlcapped.

I;. STAFF or '(TATE Arivisofly rc,t;aetis OF

VOCATIONAL EDUcATION

State Advisory Councils of VocaL tonalEducation are recipients of F't'dt'ral titian-cia! aasistaflce and therefore rOust complywith St'rtioru VIII of the Cuudeltraes.

u-I FMPt,0VMENT AT STATE oF[PATEt) VOCATiON-ti Eni'rrrioa CFNTEPS ToRoerti STATe

rivit,-AFllVjig AUT}!OPITTF,N

Where rrrrtiltment and hiring of atislf forState operated vocational education centersa conducted by a State civIl service emplos'-mont atithortty, the State u-duration agenryOperSIlog the program must insure that rc'Crciitment and hiring of 5tisff for the vansrinnal education center is conducted in ac-rordariet' with the requirt'oienta of theseQiijdi'lint's


IX I'iultittI'riit\' t'tttrl,ii. F:rntt'al itsMt'iitii u.s

5. i(t:u't}'iF:Nr ilFslttN,itult I 111:5

J'rt1htit'Iir% torali,ilicist i'iitii';ti tutu .t'ttuiutlI liai in' rt'E'ttiit'titu, ni It'ult'ral fuliant't,ul ic

al',i uitt'i t trout git f'tu-lir;sl a,i itdtrit ;Lau,tt'.tnu-t'1trogrttiva ti- nhltt'rcl iN III .stii)Ji','l lit ill iflii,' riqti itt'n-iirtil.s of iii' l)i'part tiiettt rt't:titat cuts 'tnti t Itt's' (lit ide Ittit's

it. E 1' (ii 'F:M t;N T At' Til till I ri:nIort''ioi'ltt tiE tilt' proS istotis ti 10 lu IX

of tile Ftiu ct I tin A raw ndO'i en ta i if 197 a ott

SerItop 504 iii I hi' lIt'hnbiljlutllon Ant of1973 ii I he risponsibiljt y of the I)t'parttitt'ittof IleisItit, Education, and Welfare. Howic'i'r, aittilorit y to i-'foree 'title VI of tilt' ('ivilrights Art of 1 91i4 for proprietary vou'titionalid oration ar'Iiool has been tirlrgal id to liii'Vett'rana tdtilittiStrcItion

When ttuc Office for Civil RighLa receive-aa Title Vt complaint alleging dtscrtmlntionby a proprietary vocational 'duration acitotiltt will forward the cotnplatni to I lie Vet eratis AtirO illistrctltotl and cite the appi ieabl,'rt'qitl ri'int'n Is of tilt' Depart ttlL'flt'S reeti Ia-ttons nd these Giiith'lltieS. The complainliii a it hi 1101 iln'tt of uticit Whitil

PART 84NONDI5CRIMINATION ONTHE BASIS OF HANDICAP IN FROGRAMS AN ACTIVITIES RECEIV

ING OR aENEFIT1NG FROM FEDERAL FINANCIAL ASSISTANCE

2. III 45 CFR Part 84 Appendix B isadded to read as followa:

Apperspt x B GCiDELiNLS Fofl EtA MINATINODradlltr,riNsrnuN tail Dgrstpr Or Savir[SON TIlE Bis OF Rtrt, Cnroa, NATIONALOgirIs, SEX, AND HaitirAp is VOCATIONALEaUCsrto PiiociuAM.s

NoTE- For tite text of these gtitdetints,set' 45 CFR Fart Bit, Appendix B.

PART 86NONDISCRIMINATION ONTHE BASIS OF SX IN EDUCATIONPROGRAMS AND ACTIVITIES RE-CEIVING OR BENEFITING FROMFEDERAL FINANCIAL ASSISTANCE

3. In 45 CFR Part 85 Appendix A isadded to read as follows:

Aeet:i A=OiJtpgLtPcE'( FoR Etta,lssrtaqDISCStMINArIIIN AND DI:ritAL Or SEav,ct.'IN TIlE Rsts or Fact. Coi.op, NATI0NAI')Fttit. Sgx AND tluanicap is VOcATttiNsl.FDeCATr0N PsoCtiaais

No ri: ['or the text of these guidelines.are 45 CFR Fart 80. Apprndtx H

Davlo S TAn:t,Dlrector. Office for Cu's! Rtqltt.s,

Dcpctrtrtte,tt a Wraith. Educa-(tori, and Welfare.

MARCH 15. l99-

COMMENTS AND RECDMMF.NOAT IONS

OVer 130 coflirrteflts and recomnai'n-dationis We're ri'cuitt'd by the Office forCivil Rights in response to the Decem-ber 19, 1978 publication of proposedGuidelines. 143 FR 59105l Many den'

I hid ii,'Ilu'itill'l,'_s I Itcil l'eSiiiii'tI lIt 'il_i-

till Itliltl u'ttanipt's to titi' (itiIdt'liiit'.Fat 'It itt ItI till' ni tva t'art' to II y cdlnStd'erIc I hi'fnri' a fl'alitlItsi' WIt_S llreP'Lrcdl.liii' ftsllowirig rommonla and re-aC)llAt'u ;ti'i' rtdoptt'd by the Depart-rni'iit as ci part of 1111' Cittidelinies.

Sltt'I'I.EMgNTAIty INFOI1MATItN

('it rn 'lilt! 1. Cnmnieriters statedI IoU lilt' Stipplt'mentary InformationNb't'tit)fl wils unfairly critical of vocattirial t'dtic'ation administrators, relied

ton Iit'avily on outdated and suspectdata, and ignore'd the advancesaehievt'd under the Vocational Educa-tion Amt.'ndrnents of 1915,

Response.' The objections have meritad changes have been made. TheStipplementary Information sectionhas been revised to include currentdata, to delete outdated and suspectdata, to place greater emphasis onOCR investigations arid compliance rCviews and to acknowledge that voca-I tonal education administrators haverisponded to an tidiscriminatlon meastires of the Voc8tional EducationAmcndrnerlt.s of 1976.

SEcTION IScoeg AND COVERAUE

2. Conieqetsi: Comrrienters recom-mended that paragraph I-A state withclarity that the Guidelines apply to allrecipients of financial assistance fromthe' Department of Health, Education,and Welfare and riot merely to racipi'ents of Federal vocational educationftlfldS.

Re,spo7iw: The recommendation isaccepted and paragraph I-A has beenntodi fied.

3. Conimeot: One commenter sug-gested that OCR establish a singledefinition of "recipient" in it_S Title VI,TItle IX and Sectlqri 504 regulationsto tlte extent permitted by the underlying legislation,Re,cone: A sIngle definition of 're-

cipient" would be helpful, However,the change proposed is beyond thescope of the Guidelines project.

4, Comment: Commenters requestedthat the Guideli' nes state the reaponsi-biliticis of recipients UndCr the AgeDi.srritninat ion Act of 1975

Rrsjiorisc: Regulations under theApt Discrimination Act have not yetbettt issued. The Guidelines will ulti-ntatt'ly include coverage of age dis-criroi nation.

5 Corneticitt: A comirsenter recom-mended that paragraph i-C include asan edticatiori agency providing vocatiorial education, "the State Board fVocational Education and/or a Stateboard or body providing vocationalt'dtiration'Reaonsc: Paragraph I-A states that

Slate agency recipients are covered bythe Guidelines, Paragraph I-C provides t'xamples of recipients coveredb the Guidelines and lists, at I-C(S).

FFD(RAL aEGISTER, VOL 44, NO. S8WEDNEDAY, MARCH 21, 1979

at agency operating a wish.Lo:al ethwation facility."

6 ('r in meli I.' Commenters requestedthat. paragraph 1(Dsdi and (7) beamended to include "certificate pro-grams,-

Response; 'rite suggested change hasbeen adopted.

7, Comment: Commenters requestedthat paragraph f-D list as recipients'ocational rehabilitation venters and

residential centers.Response: Paragraph I-D provides

examples of covered schools. TheGuidelines also apply to vocational re-habilitation centers and residential vo,cational education centers.

8. Comment' One commenter re-Quested a definition of the to "sub'recipient_"

Response: The term -subreeipient" isdefined in paragraph 11=B.

SECT ION II IES OE STATEAnE:Ncirs

9. comment; Commenters foundparagraph II=B incomplete and vague'.

Response: This objection has merit.The paragraph has been substantiallyrevised to clarify State' agency respon-sibilities. Definitions of "technical as-sistance" and of "compliance review"have been added (paragraph (EssSNand (31), The Guidelines now statethat the Department, not the Stateagency, has the responsibility and au-thority to make formal fact findingsand terminate and defer Federalfunds.

While these additions to the finalGuidelines answer several of the sPe-cif ic questions raised by the com-menters much more needs to be' done.Within 90 days, the Office for CivilRights and the Bureau of Occupation-al and Adult. Education will issuememoranda that provide the addition-al detail necessary for successful Stateagency compliance activity.

10, Continent: Commenters arguedthat paragraph imposes new re-quirements on State agency recipients.

Response; State agencies, as well asother recipients of Federal financialassistance, are prohibited from con-ducting their programs through subre-cipients or contractors that discrimi-nate. See for example, 45 CFR Sec-tions 90.3(b), 84.4( biol). 86.32(bi,u.).The Title VI regulations clearly in-clude a State agency obligation toadopt "methods of administration" formonitoring subrecipients for civilrights compliance.' However, this re-quirement has not been enforcedagainst State education agencies. TheDepartment believes that this must be

'HEW plans to propose an amendment toits regulations that confirms that recipientshave an identical obligation under Tine IXand Section 504. See "Supplementary informanor,. Part C, State Agency gesponsioil-i above.


correct ed. To be cfiv,, civil rightscompliance activity cannot be t he es-elusive province of Federal civil rightsagencies: it must include Departmentprogram agencies till this case theBureau of Oedipal tonal and AdultEducation) and State agencies.

11, comment: Commenters arguedthat t lie requirements imposed onState agencies by paragraph 11-B areunduly burdensome and cosily.

Response: Subparagraph Br I) hasbeen revised to insure that no signif-rant additional data collection orrecord keeping requirement is imposedon recipients. In addition, the require-ment. that State agencies investigatecomplaints has been deleted. Civilrights enforcement. however, must berecognized as important enough tomerit the allocation of necessaryfunds. Federal. State, and local fundsand resources available for vocationaleducation must be used for civil rightscompliance activities in vocationaleducation programs. The obligationsimposed are therefore not unreason-ably burdensome.

12, ColnInent: Commenters statedthat OCR. through paragraph II-B, isassigning or delegating its enforce-ment responsibilities to the States.

Response: The Guidelines contem-plate a cooperative effort among OCR,the Bureau of Occupational and AdultEducation. and Slate agencies. Theirpurpose is to add, not substitute, re-sources for civil rights compliance ac-tivity. The Guidelines now clearlystate what was always intended: TheOffice for Civil Rights will not de-crease its compliance activity in voca-tional education programs.

13. Common(; Commenters statedthat proposed paragraph II-D, whichattempted to establish a clear divisionbetween State and local responsibil-ities. was confusing and inconsistentwith other sections of the Guidelines.They asked that the paragraph be de-leted. It was also suggested that theheading of Section II and the first sen-tence of paragraph II-A should statethat the enumerated requirements areonly one aspect of a State agency's re-sponsibilities under the Guidelines.

Response The suggested changesare adopted as consistent with theintent of the Guidelines.

SECT lots 111DisrataterioN OF FEDERALFINANCIAL ASSISTANCE AND OTHERFUNDS FOR VocaTioNat, EDUCATION

14. Continent: Commenters arguedthat protected group persons must beprovided "equal opportunity" notmerely "opportunity'`" (paragraph III-A ).

Response' This suggestion is accept-ed. The opportunity for vocationaltraining Must be equal for all studentswithout regard to race, color, nationalorigin, sex. or handicap. The provision

17169

of imeonal facilities, foreannot he' excused because It is a lessthan total dental of opportunity'.

15. ('aminent : coin in en ters ques-tioned whether the purpose of pro-posed paragraph 111-B was to prohibitdiscrimination In the development of aformula (input standard) or in the al-location of funds (output standard).The policy statement In proposedparagraph III -13 controlled factors inthe formula while the example citedin the paragraph was based on fund al-locations.

Response: The Office for CivilRights may review a formula's compo-nents. However, Its primary inquirywill be whether the formula has a dis-criminatory effect on the allocation offunds. Accordingly, the first sentencein paragraph I II-B has been rewrittento delete the reference to "factors."

16. Comment' Commenters suggest-ed rephrasing paragraph III-B topermit the use of factors that remedythe effects of past discrimination.Others suggested that the DepartmentUphold the use of indicla that enablethe State to identify communities enti-tled to priority under the VocationalEducation Act. For example, a Statevocational education distribution for-mula may refer to the number of per-sons residing in a school district re-ceiving aid to families with dependentchildren or with limited Englishspeaking ability. The purpose of sucha reference is to identify areas eithereconomically depressed or with highconcentrations of low-income people.

Response: The suggestions are ac-cepted. Judicial precedent requires re-cipients to undertake affirmative orremedial action when directed by Con-gress or in response to a finding ofpast discrimination. In addition, theadoption of the recommended lan-guage confirms that a recipient's useof data on AFDC or LESA populationsto comply with the Vocational Educa-tion Act is consistent with civil rightsauthorities.

17. Comment.' Commenters asked foran explanation of the second sentencein proposed paragraph "Stateagencies must apply formula provi-sions under the Vocational EducationAmendments of 1976 In a mariner con-sistent with civil rights authorities,"They believe that the statement sug-gests an inconsistency between civilrights authorities and the targetingprovisions of the Vocational EducationAct,

Response: The sentence does suggesta tension between the provisions ofthe Vocational Education Act and civilrights authorities. In fact, they arecomplementary, Paragraph II1-B, asrevised, contains the essential lan-guage prohibiting discrimination inthe application of a formula. The chal-

FEDERAL REGISTER, VOL. 44, NO, 56WEDNESDAY, MARCH 71, 197?

1 7 1 7O

leiiguct srfltiUie tins I Iii relurt been dt-l( t id.

1g. COJTLIIICO( CotnnlenterN nuts-

tioncd whether the caarnple used Inproposici paragraph 111-B (now in III--

C, is lilt ended to require equal per-pupil allocations of kinds.

Response; Section 1061 (5)(B)(ih ofthe Vocational Educittiop Act prohib-Its the adaption of a fornula seekingequal perpiipil allocations of funds.

Rather It requires priority funding forsubrecipienta serving the greatest con-centratlons of low income farriilles. forsubrecipitrits least able to pay, and forsubrecipients serving th greatest roncentrations of students whose rdiica

don imposes higher than average coststeg.. handicapped students. studentsfroiis lowincome families, and stu-dents from families in which Englishis not the dominant Janguagey ThesetatiitOry priorities should result in

greater expenditures for communitiesWith concentriations of minority groupperaons For this reason the gauge ofunlawful discrintirist ion contained inthe Guidelinesa finding of lower al-locations for communities containingconcentrations of minority personswill generally indicate a high probabil-ity of noncompliance.

In addition to an analysis of allora-tians State-wide, OCR may examineindividual districts With ubstant irtlnumbers of minority students to deter-mine if such districts receive lowerper-pupil allocations than the State-wide average.

t9. Comment: A fundir'ig formula will

b presumed unlawfully discrimina-tory if the rirctirnstances recorded inparagraph ui-a p1ow paragraph III-C) art' present. Cornmi'nters asked forexamples of 'vlcienre that will ri'btithe prt'sllrnptlon

Respanxc: Two examples of persu;isive rebuttal evidence derive frurn itt'Vocational Education Act- First, underSuet ion I Of a )( 5 A Ic ii> a State mustgive priurlt v to funding applicationsthat propose: programs new to a sertice' area arid that arc designed to mittemerging or projected manpowernred and job opportursities. Thesepriorities are not directly related toirci[lOnTiir TOld. Therefore the applies-11011 of rtis's' priorities may in sortieci rrumstanris bc used by a Stateagl'ncv to rebut tile presumption ofclnrrjrn inli ion ansi rig from an lilTlCi

c'qiat c' alOe-al loll nt hinds to rec'lpl-inis trirnililig a clispruportionatt'lytoOl pt-ret-n1 ;Igt' of nilliori ties. Second-Is St-i-lion l0tdii4I rectliires till dis-

i-tOot ccii of Fect'ral vOc'ittiotial ecitica-11)11 tWill.-, Wi flIt' basIS iii annual ap-

p1 ic: tin-,. Au eligible recipient thathi Its U SIIhIIIII liii applic'at ion is pro-hibiT td I rum rt'c:t'is-ihg Federal funds.A ,innilar re,iIIircmc'lit may loiltrol tilt'

Ti it) it S :i c hi nct Ii filer I hrtie: ot :1 Si lIP liLW For tills


reason, I hi' faitttmt' of ti rhan nr ourrem'iljieots tu apply fut- funds tiitit iii

romisidt'rt'd before a firlitinig of i-ctmopllanre or noncompliance i'ittl hi' nettle -

These are' unity cx ansitt le of rt'b it tatevideite't' ttlllt will be c'oiisldeit'it, 1':ac'tli'iuie' must be decided on t tnt' httsts of a

careftil analysis of all t'Vtcteflt'e' he-ll eyed relevailt by t hi' rt'elpit'ilt intl bythe Office for Civil Rigltts

20. ('out i,iu'nt' Crmlmc'ntc'rs ask i'dwhetht'r the l,re.sumnt ion i,f paregraph Ill-C will he applied to tacittype' of vocational t'dticat iou programor to conibi fled St ate allue'at ions:wilethier Federal and State funds willbe examined separately or In torn bina'tion: Whether both opt'ratinlg cost a alittcapital t'xpendittires wilt hi' cx am roil:whether the distribution formula willhe judged on an annual ha_sis or over aperiod of years,

Response: Section 1 061 sirS> of t tieVoratioriril Ed lit-al lull Act ri 'ciii iris tin'States to base (he clin,tribiitmou oi Fed-

eral funds on eeononiie, stiC I si, andulem ograptlil' factors relating tu I-tnt'need for vocal ional cdtic'al tin. 'TheCornnlisslumle'r of Ednirat inn ti:is ntilt'din 42 FR. 53H65 Quut'stion 1) thathe States fiindi ng furmii Ia uniter sic-

don 1 tj6n at(S) must he applied tO i'iic:llvi tip' following Voc';tt trtni;il EvIu('at ionAct programs: basic grant tse'ctiurl120), guidance and counseling St'ctiuul134). special progr..ms for the disad-van tagt'd (se't'Uonl 140), and consumerand homemaking programs (sect ion150), To insure' rOnsistt'ili'V wit Ii Officeof Ecjuc'at ion directives under' I tie' Vi,-c'atjortal Edtieat ion Act, tim Guide-lines' requirements may hi' applied toeach of t hi' programs set out abinc'

Thit' statutory factors litvd iii St'('-

tim' tUhra>(,Si of I hit' Vocal innal Ettuc'a-Iiciri Act apply to I-hi' clistntbtii loll ofFi',le'ral vocational ecttuc'atint-i funds- ASt ate nllflv elect to distrIbute StatefunU tinder tile same or a ci ifft'rentformula, lit tins i't'c'nl, OCR mayrati'lv c'oncsidt'r Stat c' and Federal allo-cations to cic't t't-n'itlle' whither 'itch is

C'cJui-'ii5te'n I it itli ciii rigit Pi aol liuriLuc's,'i'he d istribut mu formula guvt'rns

the allocat lull of all grants to subrt'c'ip-it'nt under Sect ions 120. 134. 140, arid151), including titusi' I or operating('UslU and rapttal i'SI)t'rlilttliri'ts OCI(may I tiertfort' exam lilt' both opi'rat i rigcoils and raptl il e'xici'rndit tires.

Siatc's '(ct' re'cj Ill it 'ii to dc'srriht I hi'Icirniola fi,t to' chist ribuit ion of l"i'dem'iilI ummicis in Itt-it- fist' star plall.s (45 (:F'11114 102; il. In apillyiuig tine' gauge' ofunlass liii clisc'rinitrtar tint ci St tIc' for-niulas, OCR Ions c'unisi -etort's for a smgl vi':ir, I or ;oe'tiuttier pried it I ittrts''v Stir touchie'tticn' timil',s-lril elc-et-ili-iini:tr multi ts;eauierurrt'd.

2 i ('0111 FTit'?i 1. Ai'iuntillit'll tin eki'Ctll,til't,(lc'r rcir:iL'r:tpt) lJ I it ir)\t Ill 13

and III ( aplili'S itt Inu';iI as we'll us

-t cli' ;egt'uieit'a. (it Ii 'u':; ,'tskt'nl syhet'the'rI it' g:eogt' cu 'uurnl,iiau,u't', tout' recorelc'ehtnt Purltgrid'tt I Il CT, itpltlic't to li'l;c(: e tie It's -

Rc'.spont': l'aragn:tphu III II liw,s bri'ulnt's-keel to clarify that it applies It, allui'm'ipit'tl t,s I lint allcx'at t' Federal, State',or beat funds among eitltur recipientsor schools. Thus, I hi' paragraph applie' lit local agencies that employ t

Form title or ''other tOil hod of iii Iota-0(111'' to c1lt ribute funds among adniinistrative' subiliSt I'iCtS,

The gauge of compliance, recordedui paragraph Ill-C. referg to a poterl-hal misallocation of State' anti Federalfunds, Although this gauge mtistprove' iii practice to be' a convenientand i nforrnativt' meastjre, it will tenths-lively also be' used to evaluate alloca-tions of local funds,22. Cotuiment: State agencies argued

they could not contrerl the allocationof lue':ul funds,

Re'spnrusr; A Slate' agency is not t'x-iwcted to provide o rot e'rtion againstan irripu-upc'r allocatio:i of local fundscirtic'ss it has authority Ia review or ip-jirovt' local alloc'attatls,

23. ('am meld: Coromnen tn'rs argue'dth:ut oCR lacks authority to monitorSI ate' vocational education fundsThit'1'arg tmu'd that paragraphi lii HshOuld only control the allocation ofFederal fuund,s,Response: The Departunvnt ha an

obligation to provide protectionagainst unlawful disc'riunination in anyand all facets of a program funded inwhole or in part with Federal funds, Arecipient of Federal funds may not un-lawfully discriminate iii the allocationor use' o such funds or irs the alloca.lion or cisC of any other funds underits controL Of course', as one corn-nictiti'r nutCs, if the Department findsIt nc'ct'ssary to proceed against any re-c'ipie'nt, it may only attempt to deferor terminate HEW Federal funds,

24. Caumnm,ueuuf: Coin niemltcrs suggest-ed that the phrase "available throughFederal funds" ptiragraph Ill C nowIll D), improperly suggests that civilrights authorities apply only to comp'titive graults or contracts paid forsvir it Fc'dc'ral ftmnds tinder tue Voca'

un1 Edtic'at ion Act, They urged thatchic' phrase be deleted,

Re's;si o.o': TIle' sugge'stio 11 is at' cvpt'eu A Stalt' agency receIving Federalhinds ma not chisl'riliuinmalt' In tht' allncat cnn or rlistnibutiüui of any fundsr irtcte'r its rUnt m'ol.

25 ('o 01 rnt'um 1: Corn nit'nt en-s I hoeighitto' c'xanipte'. now re'corde'cl in para'

graph lii C, should not he re'fe'rred toiii I itt' pan-seraph relating to e'ntflpe'ti'live' g r;t n ts and c'ontu'ar't,s,

Response. liii' example cannot bemiic':en ing fri I lv appt it'd to ronlpc'titit'ev'ratlt and contracts 'The' reft'remlcetuas I huc'rt'Iort' been dull i'd,

FEDERAL REGISTER, vol. 44, NO. SWEDNESDAY. MARCH 21, 1979

I"

20. Comment: ('I unmenters suggest-ed that paragraph III- E (now I11state that in appropriate circum-stances a State may be required toremedy the effects of a prior unlawful-ly discriminatory distribution ofhinds.

Response.- The Comment is acceptedIt is well established that a recipientmust remedy past unlawful discrimi-nation and provide protection agarnstlike discrimination In the future.

2'1. Comment: Commenters ques-tioned whether paragraph III -E (nowIII-F) affects the Commissioner ofEducation's authority to approve ordirect a change in the State's methodof fund distribution.

Response: If a State system for dis-tributing Federal vocational educationfunds violates civil rights authorities,the Office of Education and the Officefor Civil Rights will joint ly seek cor-rect P.s, act ion.

SgcrIoN IV -AccEss AND Apsussios OF

S-rsoNis28. Comment.' Commenters stated

that the proposed Guidelines prohibit-ed only future unlawful discrimina-tion. They suggested a prohibitionagainst recipients "maintaining" un-lawfully discriminatory practices.

Response: This suggestion is accept-ed. Recipients must eliminate the ef-fects of past discrimination and ensurenondiscrimination in the future.

29. Comment: Commenters suggest-ed that paragraph IV-13 be amendedto require that sites be accessible tohandicapped persons.

Response: The requirement of pro-gram accessibility for mobility im-paired persons is contained in para-graph IV-N.

30. Comment: Commenters arguedthat new sites should be "equally" ac-cessible rather than -readily- accessi-ble to minority students.

Response: It is generally impossibleto find or judge sites -equally" accessi-ble to minority and nonminority com-munities. Recipients should attempt tolocate facilities in perfectly neutralsites; but no change in the Guidelinesis required or appropriate.

31. Comment: Recipient commentersstated that they often do not have au-thority to select sites for new facilities.

Response: Recipients that do nothave authority to select, review, or ap-prove sites have no obligations underthis provision.

32. Comment: Commenters objectedto paragraph IV-C on the ground thatit conflicts with State statutes thatlimit certain programs offered by adistrict to students residing withinthat district.

Response: State laws that limit theadmission of students to programs on

basis of residence within a districtmay be cited by recipients as proof of


nondiscrimination. The adeousey oraccuracy of that claini will dependupon ill of the f:uis :out will varyfrom State to :state and from ease tocase.

33, commenters `;uirsesl-NI that at (Went reassumment is !ii i ad.(Mitsui' remedy for site select ion andgeographic' service area violations(proposed paragraph IV L), now para-graph IV-ES

Response: 'Phis suggestion is accept-ed, Por example, if high school voca-tional education programs are unlaw-fully segregated because of it geo-graphic zone boundary, the segrega-tion may be remedied through studentreassignments.

34. Comment: Commenters thoughtthe geographic zoning requirementsfor secondary vocational schools (para-graph IV-C) should be the same forpostsecondary institutions (proposedparagraph 1V- E

Response: Geographic service area orattendance zone boundaries for voca-tional education centers are generallyused at the secondary level. flowerer,paragraph IV-C and IV-E apply topostsecondary' institutions that litnitadmission on the basis of student resi-dence. The separate paragraph forpostsecondary institutions has there-fore been deleted.

35. Comment: Generally, studentsmay not attend an Area VocationalEducation School (AYES) unless theyreside within one of the school dis-tricts participating in the consortium.Commenters objected that paragraphIV-C will result in an unfair require-ment that students from nonpartici-pating districts be admitted to thearea school.

Response: In the event the "circum-stances' listed in paragraph IV-C arisein a comparison between a consortiumand a school district adjacent to a con-sortium. a recipient(s) may rebut theresulting presumption of unlawful dis-crimination through proof that com-pelling reasons justified the inclusionand exclusion of contiguous districts.For example, recipients may demon-strate that an excluded district failedto approve a bond issue needed for theconstruction of a facility and that alldistricts included in the consortiumapproved such a bond issue.

It will not be sufficient for the con-sortium to prove that all participatingdistricts have approximately the sametax base and that they joined togetherfor that reason. Rather a consortiummust prove that an excluded districtreceived a genuine invitation to par-ticipate on terms comparable to thoseoffered any other district, and thatthe offer was declined by the govern-ing authority of the district. If a re-cipient fails to prove that the planningand formation stages were nondiscri-minatory, it will be required to give

FEDERAL REGISTER, VOL. 44, N

17171

Ili 1.5(111(1,s lies net iut opportitrill y toPal t ICOR! Ill' (_()Iisorl hint Ofcourse, the newly included districtInas' be required to contribute finan-cially and otherwise in I lie basis of anmailable arratitanwrit.

Mi. Comment: Cot ism-U:1 ask whetherparagraph IV 1'' bars an equal rilloca-lion of a facility 's student capacityamong part icloal ing school districts Ifthat allocation results in the dispro-portionate vNehlsinh of minority groupstudents. Comment No. 35 addressesan issue illustrated by the exclusion ofa city school system from an essential-ly suburban consortium. The Issue inthis comment, Is Illustrated by a con-sortium of a majority black city schoolsystem and four majority white subur-ban districts that equally share a voca-tional education facility with a capac-ity of 500 students. Inequality resultsfrom this agreement If the city sys-tem's student enrollment Is .sobstantia-ly greater than its suburban partners.Thus if each participant in this . fivedistrict consortium is allocated 100student spaces in the vocational educa-tion center, each suburban districtmay have only 1.000 students compet-ing for 100 spaces while the citysystem may have 2,000 students com-peting for 100 spaces- Students in thecity system do not have equal opportu-nity Liar admission to the vocationaleducation center.

Response: 'This provision (IV-F) ap-Plies to both separate school districtsand consortia. However, a consortiummay allocate available spaces in themanner described in this comment if itproves that compelling reasons similarto those discussed in comment, 35above, justify the allocation.

37. Comment; Commenters askedwhether paragaph IV-C may result ina requirement that a school districtadmit to its vocational education facil-ities students who reside in an entirelyseparate school district.

Rezponse: Paragraph IV-C and IV-Fapply primarily to discriminationwithin a school district and to consor-tia as discussed in comments 35 and36. A legally consitItuted separateschool district providing vocationaleducation only to students residingwithin Its borders is not required byParagraph IV-C to admit nonresidentstudents. However, in the event aState establishes a "vocational educa-tion district" composed of severalschool districts, the boundaries of thevocational education district are sub-ject to review under paragraph IV-C.

38. Comment' Cornrnenters objectedthat paragraph IV -l{ was unreason-able and unrealistic in presuming thatsegregated facilities, courses and pro-grams resulted from recipient prac-tices rather then student choice.Others urged that the paragraph con-tain an additional specific presurnp-

5 WEDNESDAY, AiARCH 21, 1979

1

11172

liUn of unlawful ciiscrhnivation if a

sehool were established for membersof one race, sex or national origin andc©ntinues lo be so attended. Such com-menters asked for a rule holding thatit le only permissible remedy for seen-gallon in such a school is relocation ofcourses and programs to other schools.

Response: Both comments havesome merit and have led to a rewritingof the paragraph. Vocational educa-tion administrators are quite correctin arguing that specific vocationalcourses and programs are generallyelected by. not required of. students.Consequently, segregation may resultfrom parental, community and peergroup influences that are beyond theircontrol. This fact is generally recog-nized by Section IV of the Guidelines:each paragraph identifies a method orfactor controlling student eligibilityo ther than student choice and at-tempts to provide protection againsttime unlawful exclusion of studentsbased upon that factor. Thus. a stu-dent's ineligibility based upon resi-dence (paragraph IV-C) or becausetile facility was located too far fromIlls or her home (paragraph IV-B) orbecause he or she scored too low on anadmissions test (paragraph IV -K) isaddressed by the Guidelines. Proposedparagraph IV -f4 departed from thistheme. Rather than identify a specificdevice that resulted in the exclusion ofstudents despite their desire to enroll.the paragraph proposed a presump-tion of unlawful discrimination when-ever a facility or course was segre-gated. This was unreasonable, and thegeneral presumption has been deleted.

However. the other commenters arealso correct in stating that the Guide-lines fail to identify another factor ordevice that can interfere with a stu-dent's choice. A recipient may haveconstructed a facility for members ofone race or sex and may not havetaken meaningful action to remedythe segregation. In such cases, it is un-reasonable to state that the schooloontloues to be segregated as a resultof student choice, The analogy toracial segregation in elementary andsecondary public schools Is perfect: bythe late 1960's Federal courts wereconsistently holding that school offi-cials were not adequately desegregat-ing their dual racial systems when,after 100 years of enforced segrega-tion, they merely opened the doors oftheir white schools and announced

t black students could apply for ad-mission. Paragraph IV-1-1 has accord-i Mill been rewritten to hold that if afacility was established for minorities.or for one race. national origin or sexand it continues to be essentially seg-regated despite open enrollment, addi-tional steps to desegregate the facilityare necessary. However, the suggestionthat a specific remedy should be re-


(mired of a school established a,.'Med facility, is not accepted. The

efficacy of any proposed remedy willvary from case to case.

ag. COm went' Comment ors statedt hat t here should not be a violation ofparagraph IV-11 if a protected group isrepresented in a facility in proportionto its representation in the service

Response: This comment is accepted.Evidence that members of a protectedgroup attend a facility in proportionto their representation in the servicearea will be accepted as evidence ofthat group's nondiscriminatory enroll-ment in the facility. However, theboundaries of the service area mustsatisfy the requirements of paragraphIV -C.

40. Continent: Commenters suggest-ed that in paragraph IV-H underre-presentation. not nonparticipat ion,should be the standard: that discrimi-nation based on national Origin wasimproperly omitted from paragraphsIV-F and IV-14.

Response: These suggestions merelyurge consistency among several provi-sions and identify inadvertent errors.The suggested changes have beenmade.

41. Comment: Commenters urgedthat handicapped persons be protectedby paragraph IV -H.

Response: A vocational educationcenter, branch or annex enrolling onlyhandicapped students is often permis-sible under the Department's Section504 regulation (e,g. a school for autis-tic children). Each secondary level stu-dent must be individually evaluatedand then assigned to a program re-sponsive to his or her individual needs.For this reason the presumption rec-ognized in paragraph IV-H cannotroutinely protect handicapped per-sons. Nevertheless. tinder the require-ments of paragraphs IV-N and VI-A,secondary level handicapped studentsmay be placed in segregated annexes.branches or centers only if their indi-vidualized education plans state thatthey cannot be trained in a regularprogram with "supplementary aidsand services."

42. Comment: Commenters suggest-ed that the proposed validation stand-ard of paragraph IV -IC would permitrecipients to use criteria that dispro-portionately exclude minorities orhandicapped persons merely by dem-onstrating that the students admittedwere more likely to succeed in the pro-gram. This would allow recipients, forexample, to exclude protected personsfrom the attractive trade and techni-cal programs through evidence that a"C" average student is less likely toexcel in a program than an "A" aver-age student. The commenters suggest-ed that screening criteria to be perrnis-

Bible. must be "essential to part ipa-t in a program.

Response: This suggestion is accept-ed. One of the principal objectives ofthe Vocational Education Act is toprovide protected group persons thetraining they need to obtain employ-ment. Screening criteria or standardsthat have the effect of disproportion-ately excluding such persons from vo-cational education programs musttherefore be validated as essential tosatisfactory completion of course re-quirements. The use of criteria likegrade point average, to justify priorityadmission of students with exceptionalattainments or scores may dispropor-tioniately exclude protected group per-sons. If such disproportionate exclu-sion occurs the criteria or standardsmust be validated as essential to par-ticipation in a program before theymay be used by a recipient.

43. Comment.' Commenters sought toexpand paragraphs IV-I, andThey argued that recipients should berequired to provide native languageprograms. English language instruc-tion and other diverse methods of in-struction where there are high concen-trations of persons with limited Eng-lish language skills.

Response: The changes proposed arebeyond the scope of the Guidelinesproject. The requirements of theGuidelines are consistent with estab-lished Office for Civil Rights second-ary school policy.

44. Comment: Commenters objectedto the failure of paragraph IV-D. (I)and (M) (now E. I. and M) to includedeadlines for the submission of accept-able remedial plans.

Response.' The Office for CivilRights will establish time periods forthe submission of remedial plans on aca.- by case basis.

4. Comment: Commenters thoughtthe I, iblic notification paragraph, IV-°. fat, !o ensure adequate notice ofvocation; , "ducation opportunities,Others Hi, ,ght the proposed provi-sion was too burdensome: they foundthe requirement of notice to limitedEnglish proficiency persons particular-ly objectionable,

Response: The requirement that re-cipients announce a policy of nondis-crimination has several components: 1)the notice must be continuing: 2) itmust be designed to reach a. recipient'sbeneficiaries and employees, and po-tential beneficiaries and employees,particularly members of protectedgroups: 3) it must state the policy ofnondiscrimination: 4) it must includethe name, telephone number, and ad-dress of a person who can provide ad-ditional information on the policy ofnondiscrimination. The proposed pro-vision for notification was deficientwith respect to requirement number 4:

FEDERAL REGIS/En, vol 44, NO. 36 . WEDNESDAY, MARCH 21, 1979

the final Guidelines been revisedaccordingly,

The Department agrees with thecommenters who found too onerousthe requirement of notice of 'all pro-gram offerings and admissions crite-ria." It has been substantially revised,Also, notice to national origin minor-ities with limited English speakingability is now required only if a servicearea contains a -corninUnity" of suchpersons.

46, Comment: Commenters askedwhether affirmative action programswere permissible or required.

Response: Appropriate remedialaction (sometimes referred to as "af-firmative action") must be undertakento overcome the effects of past dis-crimination. Also, certain voluntary af-firmative action measures are perrnis.sible under the Department's Title VI,Title IX, and Section 504 regulations,when a recipient finds such measuresuseful or necessary to correct societaldiscrimination or patterns of segrega-tion and nonparticipation. the Secre-tary and the President have issuedstatements urging recipients to adoptand continue voluntary affirmativeaction programs In admissions, recruit-ment. counselling, and employment.

47. Comment: A commenter askedwhether children attending private ra-cially discriminatory academies mayalso attend Federally assisted voca-tional schools.

Response: On April 26. 1976, theOffice for Civil Rights announced that-children enrolled in a non - publicschool cannot participate in the publicschool program if the non-publicschool engaged in discriminatory prac-tices prohibited by Title VI, Eventhough the non-public School is not arecipient, any discriminatory practicesby it would . directly affect theFederally assisted program." 41 F.R.35553 (August 23, 1976).

SECTION VCOUNSELING ANDPnEVOCATIoNAL PROGRAMS

48. Comment: Commenters recom-mended that recipients be required toprovide inservice training for counsel-lors On the needs of minorities, thehandicapped, and students stereo-typed on the basis of sex-

Response: Inservice training is an ap-proved method for instructing profes-sional staff on the forms of discrimina-tion experienced by students, elowee-er, recipients may obtain compliancethrough other methods.

49. Comment: Prop_ osed paragraphV-B provided that disproportionateenrollments based on sex must be ex-amined to verify that they do notresult from discrimination in counsel-ling. Commenters asked that dispro-portionate enrollments based on raceor national origin lead to a similar ex-amination of counselling practices,


Response.' The suggestion is acceptedand paragraph V-B has been revised.

50. Cormrzent: Commenters urgedthat paragraph V-E endorse affirma-tive promotional and outreach activi-ties.

Response: The recomrnendaton is ac-cepted Voluntary affirmative actionin promotional and counselling activi-ties is endorsed through commentnumber 46.

51. Comment: Commenters found"unrealistic" the prohibition againstcounselling handicapped studentstoward limited cat r objectives (para-graph V-13

Response: This provision allows a re-cipient to advise handicapped studentsof the difficulties they may encounterin fields not traditionally opened tothem. However, the provision requiresthat recipients do more than merelystale that such obstacles exist. The re-cipient must provide students with in-formation on available vocational op-portunities, em the responsibilities ofan employer under Section 504. and onavailable remedies in the event of dis-crimination. Information or materialsthat may assist recipients in meetingthis responsibility are available fromthe Office for Civil Rights. Office ofProgram and Review and Assistance.

SECTION VIEQUAL OPpORTUNITY INTHE VOCATIONAL EDUCATION INSTRUC-TIONAL SErTiNG.

52. Comment: Commenters recom-mended several changes to this sec-tion: A) -lelainstreaming" handicappedstudents should not be a priority; B)Sex restricted financial assistance,even subject to the conditions speci-fied in paragraph VI-B. should be im-permissible; C) Additional detailshould be provided in paragraph VekCto provide protection against unlawfuldiscrimination; E)) A new sectionshould be added to announce recipientobligations to national origin minoritypersons with limited English speakingability,

Respons: The primary purpose ofSection VI of the Guidelines is torecord several provisions of the De-partment's Title IX and Section LJ4regulations that deserve emphasis inlight of findings in OCR compliancereviews and complaint investigationsProposed changes -A- and -13" are in-consistent with the Department's reg-ulations and therefore beyond thescope of the Guidelines project: sug-gestion is meddlesome in that itseeks to regulate recipients aimlessly:proposed change -D" seeks a provisionalready included in another section ofthe Guidelines.

FEDERAL REGISTER, VOL. 44, NO. 5

1.7173

SECTION VIIWORK STEDN, COOPERA-TIVE VOCArlOkAL EDUCATION, JosPLACEMENT AND APPRENTICE TRAIN-iNa

53. Comment: Commenters arguedthat the reeeirements of Section VIIare too burdensome. They believe thatCongress never intended recipients tomonitor employers and unions for dis-crimination.

Response: Vocational education actrninistrators misperceive the nature OfSection VII requirements. Under theDepartment's civil rights regulationsrecipients are prohibited from engag-ing in any service, activity, or prokrarnin a discriminatory manner. Workstudy. cooperative education, and Jebplacement are recipient programs oractivities arid for this reason may notbe marred by unlawfuediscriminati00.There is evidence, for example, thatschool officials are honoring reauesesfrom employers for persons of a par-ticular race or sex or for persons freeof handicaps. Tnis is unlawful discrirre(nation by both the recipient and theemployer. Moreover, the Congress isnot mindless; it does not enact idle leg-islation. It would not appropriatemore than a half billion dollars annu-ally under the Vocational EducationAct for both nondiscriminatory Jobtraining programs and discriminatoryJob placement programs,

54. Comment: Commenters suggest-ed that the Guidelines reauire recipi-ents to obtain an assurance of nondis-crimination from employers that par-ticipate in cooperative education, workstudy, and Job placement proOthers suggested that paragraphA should require school officials tocollect, review, and maintain data re-flecting the race, sex, national origin,and handicap of students participatingin these programs.

Response: The addition of a writtenassurance to existing written agree-ments (e.g.. cooperative vocationaleducation agreements) is a reasonableand useful measure. This requirementhas been added to the Guidelines, Todate. OCR investigators have not beenfrustrated by inadequate recipient rec-ords. and the data collection sugges-tion is therefore not accepted.

55. Com/reale Commenters urgedthat paragraph VII be rewritten toallow Potential employers to discrimi-nate on the basis of handicap if thehandicap prevents a person from per-forming the Job. One commenterstated, for example, that a roofingcompany need not hire an individualwith no legs as a roofer since the jobrequires an ability to climb a laddercarrying 90 pounds of materials.

Response.' Employers may not dis-criminate on the basis of handicapagainst otherevlse qualified Nandi-capped persons. Prospective employersare permitted to make preemployment

WEDNESDAY, MARCH 21, 1979

17111

inanities into an applicant's ability toperform job-related functions. Note,however, that employers are requiredCo "reasonably accommodate" the spe-cial needs of a handicapped employeeor applicant for employment if it doesnot result in an "undue hardship" forthe employer. In the example Pro-vided by the comrnenter, a small roof-ing concern would probably be undulyburdened by the accommodation nec-essary for this handicapped person.Rowever. in contrast, a major universi-ty will not experience -undue hard-ship- if it provides a reader for a blindapplicant for employment. See para-graph VIII-E of the Guidelines. Addi-tional information on the principles of"undue taardship- and "reasonable ac-commodation" can be obtained fromthe Office for Civil Rights, Office ofProgram Review and Assistance,

56, Comment' Commenters objectedto the phrasing In paragraph VII-Asuggesting that a recipient must con-trol an employer's policies and prac-tices.

Response: A recipient cannot controlthe policies or practices of an employ-er. flowever, a recipient must deter-mine whether an employer diserirni-

anes and if necessary divorce Itselfits programs and activities --frown thediscriminating employer.

57. Comment: Commenters askedwhether recipients are prohibitedfrom entering work study and coopera-tive education agreements with ern.PloYers that have remedied their dis-criminatory policies and practices.

Response.' Recipients are free toenter into agreements with such ern-pioyers.

58. Continent: A commenter arguedthat prospective employers in coopera-tive placement activities should not becovered by these Guidelines becausethey are "ultimate benef iciaries-Under 45 CFR § 84,3(

Response: The requirements of theGuidelines apply to recipients of Fed-eral funds, not to prospective employ-ers. Recipients must take measures tofree Weir programs and activities ofemployers who unlawfully discrimi-nate. It is unnecessary, therefore, todetermine whether prospective ern-Moyers are -ultimate beneficiaries.'

59. Comment: Commenters askedwhether the reauirement of nondis-crimination in apprentice training ap-plies only to programs sponsored byunions.

Response: Paragraph VII -II appliesto registered and non- registered ap-Prentice training programs whethersponsored by a union, an individualemployer, a group of employees. anernoloyer-ernployee committee, or akovernmental agency_ The text ofparagraph VII =S has therefore beenrevised to cover a "labor union orother sponsor.- Also, all sponsors of


apprentice programs are subject to theDepartment of Labor Guidelines forNondiscrimination in All Apprentice-ship Programs (29 CPIt Part 30).

SECTtoN VIIIEnelMoYivigr4r OFFAcenra Arm Starr

60. COI ent; Cornmentera arguedthat the Department's Title VI em-ployment jurisdiction extends only toemployees who work directly with stu-dents. They state that the Depart-ment has no authority to act on com-plaints of employment discriminationagainst "administrators or applicantsfor employment."

Response: The Guidelines have beenrevised to reflect the Department'scurrent interpretation of its authority.If and when it is revised or modified.the new policy will be announced andwill suPersede the Guidelines.

61. Comment: Commenters statedthat the Department has no authorityto accept or resolve employment dis-crimination complaints under TitleIx,

Response: The Guidelines reflect theDepartment's current internretationof its authority. Several uses raisingthis Issue are now pending in thecourts of appeal. If and when this liti-gation results in controlling holdingsthat the Department has no employ-ment jurisdiction under Title IX. theDepartment's regulations and theseGuidelines will be revised.

62. Comment: Cominenters suggest-ed that under a recent decision of theUnited States Court of Appealr for theFourth Circuit. Trageser v. t.4bbic Re-habilitation Center, --P.2d (4th Cir.19781. the Department has no authori-ty to accept or resolve emnloymentdiscrimination eomplaints under Sec-Hon 504.

Response: The Guidelines reflect theDepartment's current interpretationof its authority. If and tvrien it Mustbe revised to conform to controllingjudicial decisions, the new policy willbe announced and will supersede theGuidelines.

63. Comment.' Commenters statedthat the definition of a "qualifiedhandicapped- Person under Section504 of the Rehabilitation Act and theGuidelines is at odds with the Departtnent of Labor's definition under Sec-non 503 of the Rehabilitation Act.

Response: The Department of HEWis presently reviewing with the De-partment of Labor the inconsistenciesbetween their definitione. TM Guide-lines reflect the Department's currentview. If and when it is revised or niodi-fled. the Department's regulation andthese Guidelines will be revised.

64. Comment: Coin rneoters objectedto paragraph VIII=F on the groundthat it establishes requirements incon-sistent wit h Baker.

Al REGISTER, VOL- 44, NO.

Response: The Guidelines require re-medial action to overcome the effectsof past discrimination. Bakke permits.among other activities, such "affirma-tive action.'

65, eommerzi: Corny enters objectedto paragraph VIII-C as "presumingguilt- before an investigation is con-ducted.

Response: Although alternative lan-guage was considered. no change hissbeen made in Inc Guidelines. It is notthe intention nor the effect of theGuidelines to rnalae baseless PreStirriP-tioos or findings. Rather, statisticalpatterns result ill inferences that addi-tional evidence may rebut, The Officefor Civil Rights will not find unlawfuldiscrimination solely on the basis ofstatistical data or without affording arecipient an opportunity for rebuttal.

66. comment Commenters urgedthat the Guidelines reauire recipientsto maintain and subroit data on its em-pinyment practices.

Response; This suggestion was re-'eeted. Records maintained and sub-

d by recioleuts Under other au-have satisfied the needs of

R investigators.C'ononent: Corurnenters asked

whether this section applies to Stateagencies.

RespOnse: All recipients of Federalfinancial assistance from the Depart-ment, as Specified in Section 1, are cov-ered by Section VIII. This also ex-plains the requirernent of paragraphII-A( 4).

68. Comment: Commenters statedthat paragraph should recog-nize that a recipient may rebut a pre-sumption of unlawful employment dis-crimination through evidence thatQualified persons of a protected aromawere not available to the individualschool diatrict nor to the vocationaleducation center,

RespOnSe: Rebuttal evidence may in-clude proof that: (1) Members of aprotected group were recruited with-out success: or (2) Identified personsof a protected group were offered ern-ployment opportunities that were de-clined.

SEcanng IX---Paorniary VocATIONALEnucatior4 &Hoots

60. Comment: A commenter arguedthat a tuition grant or loan to a alai-dent in attendance at a proprietaryschool is not Federal financial assist-

(' to the proprietary school. Ratherit is compensation paid for a directservicea -procurement contract.- Itis argued that proprietary schools aretherefore not subject to the Depart.merit's regulat ions or these Guide-lines.

Response: The Department has longdefined the term "recipient" underTitle VI, Title l and Section 504 toinclude proprietary (i.e., other than

Eft/kr, MARCH 21, 1974

LJ

Public or nonprofit) educational insti-tutions that receive tuition from stu-dents participating In Federal tuitiongrant programs. It is beyond the scopeof the Guidelines project to reconsiderestablished Department policy.

DAVID S. TATEL,Director,

Office for Civil Rights.March 15, 1979.Mt Doc. 79-8861 Filed 3-20-79; 8:45 am 1

RULES AND REGULATIONS 17175

S VERNMENT PR OFF ICI I

FEDUAL IREGISTE1, VOL 44, NO. 56VIEDNISDAY, MARCH 21, 1979

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